SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 11, 21 December 1844, Page 3

SUPREME COURT.

MURRAY V. FYFE. This was an application under the Interpleader act (1 & 2 Win. IV. c. 58), on the part of the defendant, to bring a sum of £108 into Court until the right to it could be tried between the plaintiff and Messrs. Waitt and Tyser the adverse claimants. It was argued in Chambers last Thursday by Sir. Hanson for the defendant, Mr. Holroyd for the plaintiff, and Mr. Ross for the adverse claimants — I the two latter gentlemen, on the part of their clients, of course opposing the application. On Tuesday Mr. Justice Chapman gave I judgment as follows :—: — j This is an application, on the part of the j defendant, to be allowed to avail himself of J the provisions of the Interpleader Act, upon j somewhat singular grounds. The action is I brought to recover the sum of £108, and in j support ol the application the defendant has ! filed an affidavit, setting forth that, being ; indebted to the plaintiff in the sum of £200, i balance of account, he did authorize Messrs. j Waitt and Tyser (the adverse claimants) to ] pay it, — that the defendant has been informed by Messrs. Waitt and Tyser that they did pay it to the plaintiff — and that the delendant is charged with the said sum of £200 by Messrs. Waitt and Tyser. The affidavit then goes on in the usual terras to state the adverse claim, to disclaim interest in the sum nought to be recovered, to offer to bring the money into Court, and to deny collusion- To this Messrs. Waitt and Tyser answer that they were the defendant's agents, that he authorized them to settle with Murray, and that they did settle with him. So far the affidavits coincide. They then go into a very complex statement to show how they paid Murray. ' First they paid a sum to one man as Murray's agent, then they paid Murray himself a sura of money, and lastly they paid or rather " transferred " a further sum to another who represented himself as Murray's agent, and who showed what the affidavit styles a " copy of an authority." It is then further stated that the defendant is still indebted to Messrs. Waitt and Tyser for goods supplied, as well as on the transaction to which the plaintiff was a party. The claim is for £108, and the affidavits speak of a balance of £200 or thereabouts. It does not appear how this balance was passed down, and Messrs. Waitt and Tyser's affidavit accounts for the liquidation of rather more than the entire sum. Assuming that there is no confusion as to the sum, or as to the' identity of the two claims, the affidavits both show Ist. that Fyfe did owe Murray the money claimed. 2. That be authorised an agent to pa\r it. 3. That bis agent lias paid it. "Now the Interpleader Act in the preamble, distinctly shows that it was intruded to appiy to cases where a defendant " has no means of relieving himself from auqh adverse claims but by a suit in equity," Can it be

said that the defendant lias no raeans_ o| relieving himself ? ' Let him plead the facts' he states and prove them, and the plaintiff m\l be ont of > Court. The principle on which James v. Pritchard (7 Mew. & Welsb.) rests, clearly applies to this case, even viewing it irt the light most favourable to the defendant { and neither that case nor this seems to me td come within the letter or the spirit of the act. Besides, in the complicated state of the accounts between the several parties, as disclosed by the affidavits, it is impossible to say what causes of action the rule sought for would not bar, and to grant it might do great injustice. Waitt & Co. swears that Pyfe is still indebted to them for goods sold. Has that any thing to do with the subject matter of4|is action 1 Again, Mr. Wade's authority to receiye payment for Murray may turn out to be bad. If so, there has been no payment, and Murray is entitled still to look to Fyfe. On what ground, in such a case, can ■ the defendant claim to force the plaintiff to look to Messrs. Waitt and Tyser, who, as a ' firm, at all events have uufortunately yielded ! to the pressure of the times. The affidavits disclose a pleadabla defence, and the Rule ' must be discharged. \ Rule discharged, with costs. I