In Langston v. Boylston, 2 Ves. jun. 108. the Lord Chancellor seems to have thought that a bill of interpleader was never brought to a hearing.

For decree on bill of interpleader, where one of defendants makes default. See Decrees by Default, post.

(2) Costs of Plaintiff.

That the plaintiff has a lien upon the fund, if the suit is properly instituted. See Beames on Costs, 37.

1 S. & S. 462. Paris v. Gilham, Coop. 56.

Campbell v. Solomans,

Where the right to compel the defendants to interplead is not disputed, it seems that the plaintiff may obtain his costs on motion. See Jones v. Gilham, Coop. 49. And see Further Directions, Note (3), post. But where the right is disputed, costs will not be given to the plaintiff before the hearing. Jones v. Gilham, supra.

(3) Further Directions.

In Anon. 1 Vern. 352. it was declared by the Court, that a cause having been heard upon a bill of interpleader, and a trial at law directed to settle the right between the defendants, there was an end of the suit as to the plaintiff; so that if he afterwards died, the cause should still proceed; and that there was no need of revivor, each defendant being in the nature of a plaintiff.

A decretal order having been made on the motion for an injunction, the plaintiff was allowed his costs on motion. Aldridge v. Mesner, 6 Ves. 418.

Costs of Suit.

On further directions the Court will order the defendants by whom the suit has been occasioned, to pay the costs of the plaintiff and other defendants. Dowson v. Hardcastle, 2 Cox, 278. Cowtan v. · Williams, 9 Ves. 108. and cases referred to in note.

In Edensor v. Roberts, 2 Cox, 281. the plaintiff was ordered to pay the costs of some of the defendants, and to be repaid them by the others. But see the Q. of the reporter as to this.

DECREES FOR ISSUE, CASE, &c.

No. I.

DECREE FOR ISSUE ON MODUS.

It is ordered that the parties do proceed to a trial at law (1) the next Summer assizes twelve months (2), to be holden for the county of Leicester, upon the following issue (3): Whether from time whereof the memory of man is not to the contrary, there has been paid and payable, by the farmers or occupiers of the yard-lands within the said parish, to the rector of the said parish for the time being, yearly, a modus of 5s. per annum for every yard-land, in lieu and satisfaction of all small tithes arising and renewing upon such yard-lands respectively. And the plaintiff here is to be plaintiff at law; and the said defendants are forthwith to name an attorney to accept a declaration, appear, and plead to issue. And it is hereby referred to the said Master to settle the said issue, in case the parties differ about the same. And it is ordered and decreed, that all books, papers, and writings, in the custody or power of any of the parties relating to the matters in question be produced (4) before the said Master upon oath, on or before the last day of Michaelmas term next; and any of the parties are to be at liberty to inspect the same, and to take copies thereof or of such parts thereof as they shall think fit, at their own expense; and such of the said books, papers, and writings are to be produced at such trial, as either party shall give notice of for that purpose. And his Lordship doth reserve the consideration of costs, and of all further directions (5), until after the said trial shall be had. And any of the parties are to be at liberty to apply &c. [See Usual Di

Hodgkin, L. C. 20th

rections, No. XIX. ante.] Carte v. Hodgkin,

May, 1748. Reg. Lib. A. 1747. fol. 628.

For order for issue to try partnership. See Troutbeck v. Crew, 2 Turn. Pract. 180.

For order for issue to try bankruptcy. See Equity Draftsman,

631.

For form of issue made up for trial. See 2 Turn. Pract. 181. For judge's certificate of trial of issue. See Rawson v. Ramsden, 2 Turn. Pract. 80.

NOTES.

(1) In what Court.

The plainitff in the issue must elect to have it tried either in the King's Bench or Common Pleas. If there is any special reason for having it tried in the Court of Exchequer, a special motion should be made for that purpose. Antrobus v. East India Company,

5 Mad. 3.

The Court of Exchequer always endeavours to have issues directed by it, sitting as a court of equity, tried at the bar of the Court of Exchequer, sitting as a court of common law. Webb v. Rorke,

2 Sch. & Lefr. 667.

Special Jury.

After the issue is made up, a motion should be made for a special jury, if necessary. Anon. 2 P. W. 68. Attorney-General v. Snow,

there cited.

In the Exchequer an application for a special jury is nearly of Stuart v. Greenhall, 9 Price, 480.

course.

A trial at bar should be directed to be by a special jury. Baker v. Hart, No. II. post. And see Tidd's Pract. 791. 825.

Venue.

The Court sometimes directs the issue to be tried in a particular county. Chapman v. Smith, 2 Ves. 516. Grascomb v. Jefferies,

there cited.

In Sparke v. Ivatt, 1S. & S. 366. the Vice-Chancellor held that an order to that effect could not be made part of the decree without consent, because the propriety of it depended upon circumstances which were extrinsic to the pleadings and proofs, but that a petition must be presented for the purpose of obtaining it. But see Chapman v. Smith, supra.

(2) Default.

By Plaintiff.

In the Exchequer the plaintiff in the issue may make default at one assizes. Mitchell v. Rabbetts, cited 1 J. & W. 226. And in Chancery it seems that formerly notice of trial might be countermanded. See Anon. 2 P. W. 68. But it seems that this is not now the rule in Chancery. See Bearblock v. Tyler, 1 J. & W. 226. Nevertheless, under special circumstances, leave will be given to postpone the trial. S. C. Delay being apprehended on the part of the plaintiff, the Court of King's Bench will permit the defendant to carry down the record by proviso. Humpage v. Rowley, 4 T. R. 767. In Anon. 4 Mad. 255. the issue not having been tried as directed, nor any notice of trial given, an order was made that the plaintiff should try the issue at the next assizes, or that it should be taken pro confesso.

For order nisi to take issues pro confesso. See Equity Draftsman,

617.

In Drake v. Smith, 6 Price, 100. a similar application was refused by the Court of Exchequer as premature; and the course was said to be, upon default, to move to take the issue pro confesso.

By Defendant.

In Gardiner v. Rowe, 4 Mad. 236. it is said to have been held, that the Court had no power to compel the defendant to proceed on an issue. But in Wilson v. Ginger, 2 Dick. 521. a defendant neglecting to name an attorney, for the purpose of trying the issue, was directed to do it in four days, or the issue to be taken as tried, and a verdict for the plaintiff. And the like order was made in Constable v. Angel, Ib. note. The cause may be set down for further directions, and to have the issue taken pro confesso. Anon. 1 Newl. Pract. 352. note.

(3) Form of the Issue.

The form of the issue is the same with that of an assumpsit upon

a wager. See 2 Chitty on Pleading, 116.

2 Turn. Pract. 181.

(4) Production of Papers.

Turn. Pract. 449.

Upon a trial directed by the Court, the parties will be directed to produce at the trial all documents which the Court may think necessary for a complete investigation. See Marsh v. Sibbald, 2 V.

& B. 375. The order for production will be made upon a defendant although he declines to become a party to the issue. Pindar v. Smith, 6 Mad. 48. But it will not be extended to documents held by him in a distinct character. S. C. The defendants in a tithe suit were ordered to produce at the trial of an issue, and before the Master, deeds produced by them at the hearing, though belonging to their landlord, who was not a party, or to admit at the trial the facts which the deeds were produced at the hearing to prove. Pulley v. Hilton, 10 Price, 118. Where documents and other evidence have been produced and read by either party at the hearing which he afterwards refuses to produce at the trial in evidence for the opposite party, a new trial will be granted, toties quoties. S. C. And see Cooke v. Marsh, 18 Ves. 210.

(5) Further Directions.

Before the trial of the issue, the plaintiff may dismiss his bill with costs upon motion. Carrington v. Holly, 1 Dick. 280. S. C.

cited 2 Dick. 612.

But after the trial of the issue, and a verdict found for the defendant, the defendant is entitled to have the cause set down for further directions, in order that the dismission may be pleadable. S. C.

Costs.

That the costs of an issue are discretionary, but that they generally follow the event, as at law. See Beames on Costs, p. 234.

No. II.

DIRECTION FOR TRIAL AT BAR.

His Lordship doth order that the parties do proceed to a trial at law at the bar of the Court of Common Pleas in Middlesex, some time in the next Michaelmas term, or at the sittings after next term, or at such other time as the Lord Chief Justice of that court shall think fit to appoint, upon the following issues, viz. &c. Baker v. Hart, L. C. 5th May, 1746. Reg. Lib. A. 1745. fol. 408. and Recital of Order. S. C. L. C. 5th July, 1746. Reg. Lib. A. 1745. fol. 539. S. C. 3 Atk. 542. 1 Ves. 28.

For order for trial at bar. See Equity Draftsman, 630.