CHAPTER X.

UNDERTAKING IN DAMAGES.

THIS matter may now be regarded as settled by A.-G. v. Albany Hotel Co., [1896] 2 Ch. 696; 65 L. J. Ch. 885. In that case the earlier cases, reported and not reported, were discussed, and it was held that, in granting an interlocutory injunction at the instance of the Attorney-General on behalf of the Crown, the Court will not, as a general rule, require the Attorney-General to give the usual undertaking in damages. The only distinct authority to the contrary, Secretary of State for War v. Chubb (1880), 43 L. T. 3, was distinguished by Lopes, L.J., on the ground that the Secretary of State, and not the Crown by the Attorney-General, was the plaintiff upon the record, but this seems not to be a valid distinction for this purpose, and that case must be taken to have been overruled. No arguments are given in the report of it, and Jessel, M.R., is reported as merely saying that he could see no reason for making an exception in favour of the Crown in a matter of common and universal justice. But North, J., in A.-G. v. Albany Hotel Co., ubi sup., had the transcript of the shorthand note before him, and he also was unable to understand the grounds of the decision. The curious way in which this invalid decision has been applied in Ireland is noticed at p. 616, below.

CHAPTER XI.

APPEAL.

As to stay of execution in proceedings on the Revenue side of the King's Bench Division, see above, p. 214 (Law), and p. 246 (Equity).

The Crown, on the general principles applicable to Crown costs, will not give security for costs of an appeal either to the Court of Appeal or the House of Lords. See below, p. 613, and especially Lord Advocate v. Lord Dunglas (1842), 9 Cl. & F. 173.

But even in proceedings where the Crown pays and receives costs, as on a petition of right (see above, p. 397), or where a Government Department is liable to pay and entitled to receive costs, it is apprehended that the Court would not order them to give security for the costs of an appeal. The other party needs no such protection in such a case.

Reference may also be made to certain cases in the Privy Council. In A.-G. of Isle of Man v. Cowley (1858), 12 Moo. P. C. 27, the Board held that the Attorney-General need not enter into a recognisance to answer the costs of the appeal. The same decision was arrived at, in the case of a defendant who by statute represented the Government of a colony, in Robertson v. Dumaresq (1864), 2 Moo. P. C. (N. S.) 66 ; so in In re Attorney-General for Victoria (1866), 3 Moo. P. C. (N. S.) 527.

The time for appealing to the Privy Council has been held to be no longer in the case of the Crown than in that of a subject. (Laing v. Ingham (1839), 3 Moo. P. C. 26.) But quare whether this principle would be strictly enforced where matters of public importance were involved, if the Crown made proper provision for an indemnity in the matter of costs to the other party.

Occasionally the Court of Appeal has asked the Crown to join itself as a party, where it was of opinion that such a course was advisable or necessary.

As to appeals by the Crown on costs alone, see below, p. 616.

With regard to appeal on a trial at bar, see A.-G. v. Bradlaugh (1885), 14 Q. B. D. 667; 54 L. J. Q. B. 205, above, p. 591.

It is stated in Manning, Exch. Pr. (ed. 2), p. 128, that on a judgment in favour of the Crown on a traverse of inquisition, no writ of error could be brought without the consent of the Crown or the AttorneyGeneral, which would not be refused if any point really arguable could be raised. Sed quære, whether this is still so in the case of an appeal, if the view expressed above, p. 429, is correct, namely, that the proceedings in traverse are exactly the same as any other proceedings on the trial of an issue in the King's Bench Division. See also above, p. 214.

C.P.

R R

CHAPTER XII.

THIRD PARTY PROCEDURE.

Errington v. A.-G. (1731), Bunb. 303, was a bill of interpleader against the Attorney-General and others in the Exchequer, where the Crown put in an answer, and later an amended answer, and in Reid v. Stearn (1860), 1 L. T. 539, a bill was filed praying that the Crown, together with other defendants, might be decreed to interplead, the fund in question being, it was suggested, the property of a deceased felon. Counsel for the Crown submitted that there was no precedent for the Crown being called upon to interplead (being unaware, apparently, of the case in Bunbury), but Stuart, V.-C., said that "he conceived, if the Crown was adversely claiming against the stakeholders, that they had a right, when other persons were claiming the same money, to file a bill of interpleader, and to make the Crown a defendant to the bill, because the Crown was one of the parties who were vexing them by contesting the right. . . . . There must be a decree that the Crown and the railway company shall interplead." It is not easy to understand this decision, inasmuch as the Interpleader Act, 1831 (1 & 2 Will. IV. c. 58), which regulated interpleader proceedings before the Judicature Acts, clearly did not bind the Crown. In Candy v. Maugham (1843), 6 Man. & G. 710; 15 L. J. C. P. 17, which was not cited to the Court in Reid v. Stearn, ubi sup., where, pending an action, an immediate extent in chief was issued against the plaintiffs, under which the debt which formed the subject matter of the action was seized to the use of the Crown, and notice was subsequently given to the defendant by the Board of Customs requiring him to pay the debt to the Crown, the Court refused to grant an interpleader rule under the statute calling upon the Board of Customs and the plaintiffs to interplead, on the ground that the statute showed that the Crown could not be made a party to interpleader proceedings, and that the defendants were seeking to induce the Court indirectly to call upon the Crown to appear before it.

This decision seems to have been perfectly right, and it is equally applicable to Ord. LVII., which now governs interpleader proceedings, and which does not bind the Crown any more than the statute did.

It has been followed in several cases in Chambers within the author's knowledge.

In In re Commissioners of Her Majesty's Works and Public Buildings, Garston and Davis, not reported, the Commissioners waived such rights as the Crown had pro illa rice, and took out an interpleader summons.

Ord. XLV., which concerns the attachment of debts, does not bind the Crown, and so garnishee orders nisi against Government Departments have from time to time been discharged with costs, as in Higgins v. Bussy (1899), not reported, against the Controller of the Stationery Office, in Broadbent v. Saunders (1899), not reported, against the Admiralty in the person of their Director of Works, and in Bennett v. Taverner (1902), not reported, against the Secretary of State for War.

In Tiano v. Rousseau and Truman (1902), not reported, an interim injunction was obtained ex parte to restrain Truman, who was InspectorGeneral of Remounts, from paying to the other defendant money alleged to be due to the plaintiff, but, on an application to continue the injunction, the action was dismissed against Truman with costs, on an affidavit proving the position held by him under the War Office.

It would seem that the National Debt Commissioners can be garnished in respect of an annuity charged on the Consolidated Fund, which they must be regarded as having contracted to pay. In Mann v. Poppleton (1892), not reported, in the City of London Court, they paid the registrar the amount of the instalment claimed by the judgment creditor.

Neither the full pay (Apthorpe v. Apthorpe (1887), 12 P. D. 192), half-pay (Flarty v. Odlum (1790), 3 T. R. 681), retired pay (Crowe v. Price (1889), 22 Q. B. D. 429; 58 L. J. Q. B. 215), or pension (Lucas v. Harris (1886), 18 Q. B. D. 127; 56 L. J. Q. B. 15; Quin v. O'Keeffe (1860), 10 Ir. Ch. R. 151, 262), of an officer in the army or navy can be attached for debt; but an officer may be committed in default of payment of instalments of a judgment debt, even though the only income, of which he is proved to be in receipt, is his pay as such officer (Hamilton & Co. v. Coningham, [1903] 2 I. R. 564).

It is stated by Chitty, Prerog. 361, citing Staundf. Praerog. c. 19, that where there are various conflicting claims the Crown has the prerogative power of deferring the establishment of its title till the parties have interpleaded among each other, when perhaps the Crown's claim may be rendered more evident. See also Jacob's Law Dict. 8. v. Enterpleader. This principle seems to have applied chiefly where offices in different counties had found a title in different persons. In Manning, Exch. Pr. (ed. 2), 93, 94, it is said that "if two persons claim the same property, and the title of the Crown is weak, it seems