"On the argument it was urged that there was no adjudication; that there being no evidence taken there could be no adjudication as required by sub-sec. 3 of sec. 210 of the Division Courts Act, which enacts that the county Judge shall adjudicate upon the claim, and I was referred to Challoner v. Burgess, 2 U. C. L. J. 137. The plea there was one in which no adjudication was alleged, but merely that the claimant made default and the Court held that the matter was not res judicata, and the plea no bar to the action; also to Evans v. Sutton, 8 Pr. R. 367.

"There is a distinction between the Division Courts Act and the Interpleader Act as applicable in other Courts. Rule 38 provides for the filing of claims and rule 39 provides for an adjournment so as to enable the Judge fully to adjudicate upon the claim upon the merits. Rule 40 provides that where the claim is dismissed the bailiff shall be allowed his costs out of the amount levied, and the form given (71) of adjudication on interpleader, shews that an adjudication on the merits is contemplated, but this cannot apply to a case where the claim set up was dismissed, which no doubt it well might be, for want of prosecution.

"R. S. O. sec. 10. ch. 54, provides that if a claimant abandons his claim he may be ordered to pay sheriff's costs. By sec. 25 of the same Act it is provided in case of carriers and bailees that where a claimant does not appear to maintain or relinquish his right or does not comply with an order made, the Judge may declare him barred from making or prosecuting his claim against such carrier or bailee.

"No such power of barring a claim is given by the Division Courts Act to the County Judge, and the form of order, judgment or adjudication used in this case certainly does appear not to have been exactly in accordance with the statute, rules, or forms given.

"Nevertheless I think that we may look at the power to make an order and the intention to be gathered from the words used, and see what the effect of such an order would be. Doubtless under the Act and Rule 40, the Judge had the power to dismiss the claim and then adjudicate upon it, for it must be remembered that he had before him the evidence of the bailiff, and order the claimant to pay the costs, and I do not think that in doing this he would be bound down to any particular form of words; and having the power to dismiss, I think the word "bar" is equivalent and could be used in place of "dismiss."

"See Oliphant v. Leslie, 24 U. C. R. 398, where it was held that although the minute was informal, yet it was in substance a dismissal of the plaintiff's claim. Draper, C. J., says: "I think we ought to look at the substance of the order as dismissing the plaintiff's claim." The form (31) of adjudication under the then existing rules was identical with the form 71 under the rules framed since Oliphant v. Leslie. Then supposing that the order was a dismissal of the claim made by Vanstone, we come to the main question, viz., whether these facts which as in Oliphant v. Leslie, should, I think, have been set out in the pleadings, estop the defendant from asserting any right to the wheat as against Hunter the bailiff.

"In considering this point we must bear in mind that these provisions

of the Division Courts' Act providing for an interpleader were enacted for the benefit and protection of the bailiff.

"Draper, C. J., says in Oliphant v. Leslie, p. 404: The interpleader summons was issued for the protection of the bailiff and the adjudication was against the plaintiff's claim, although in a form not regular, and unless we must hold that the proceeding was nugatory, by reason of the informal shape of the adjudication, the bailiff is entitled to the protection the statute intended to give him.'

"Much was said upon the argument upon the general question of estoppel which, in my opinion, is not strictly applicable to the case. The bailiff under the provisions of a statute made for his protection takes steps to ascertain whether or not he can sell certain goods seized by him; the party claiming them, by not filing his claim in accordance with the statute, refuses to try his right and, so far as the bailiff is concerned, his claim is dismissed. Can it be possible that, in spite of such proceedings, the bailiff is to be treated as not a party to them? If so the statute is no protection to the bailiff. Under the circumstances perhaps Vanstone is not estopped as against George the execution creditor, but I think he certainly is as against Hunter.

"Under Rule 37, the interpleader summons is issued by the officer charged with the execution, and the case shall proceed as if the claimant were the plaintiff and the execution creditor the defendant. I cannot see how we can treat the bailiff as not a party to it. In Barrs v. Jackson, 1 Y. & C. 585, V. C. Knight Bruce lays down the principles which govern such cases. 'It is', he says, 'I think to be recollected that the rule against re-agitating matters adjudicated is subject generally to this restriction that however essential the establishment of particular facts may to the soundness of a judicial decision, however it may proceed on them as established, and however binding and conclusive the decision may as to its immediate and direct object be, those facts are not at all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose, as to which they may come in question, provided the immediate object of the decision be not attempted to be withdrawn from its operation so as to defeat its direct object.' Here, if Vanstone is entitled to question Hunter's possession of the goods, certainly the immediate object of the decision would be attempted to be withdrawn from its operation so as to defeat its direct object.

"The authorities in our own Court, in addition to Oliphant v. Leslie, above referred to, shew that the determining there is no claim is final and conclusive.

"In Keane v. Steadman, 10 C. P. 435, Draper, C. J., says: "The administratrix made a claim and had to support it, and if she failed to support it, what could be done but dismiss it? The want of evidence only shows that she could not or did not sustain her claim; and as the 191st section of the statute makes the decision of the Judge final and conclusive, we are not justified in reviewing it if he had jurisdiction to decide it, which is not denied. See also Harmer v. Gouinlock, 21 U. C. R. 260; McCollum v. Kerr, 8 U. C. L. J. 71."

95-VOL. VII A.R.

754

ONTARIO APPEAL REPORTS.

Thus holding that the defendant was estopped from asserting in this action any right to the possession of the wheat in question, and against this decision the appeal was brought.

The appeal came on to be argued on 11th September, 1882.*

H. J. Scott, for the appellant.

McCarthy, Q. C., for respondent.

September 16th, 1882. The judgment of the Court was delivered by OSLER, J. [After stating the facts above set forth.] The defendant contends the order made by the learned Judge in the interpleader suit does not operate as an estoppel, there having been no adjudication by him, and no decision on the merits of the claim, as the order was made without hearing evidence, and in the absence of the defendant.

*

process of any Division Court

*
*

The Division Courts Act, sec. 210, (R. S. O. ch. 47) enacts that "in case a claim be made to or in respect of * taken in execution any goods under the by any person not being the party against whom such process issued then * the clerk of the Court, upon application of the officer charged with the execution of such process, may * issue a summons calling before the Court as well the party who issued such process as the party making such claim, and thereupon any action which has been brought in respect of such claim, shall be stayed." Sub-sec. 3. "The County Judge having jurisdiction in such Division Court, shall adjudicate upon the claim, and make such order in respect thereof, and of the costs of the proceedings, as to him seems fit, and such order shall be enforced in like manner as an order made in any suit brought in such Division Court, and shall be final and conclusive between the parties."

* *

Mr. Scott argues that no adjudication on the claim has been proved by the evidence admitted under the consent;

*

Present.-WILSON, C. J., GALT and OSLER, JJ, under order of 2nd September, 1882, ante p. 454.

HUNTER V. VANSTÖNE.

755

that even if there had been one it would be no estoppel against the claimant in such an action as the present, but only in an action by or against the execution creditor. He also urged that the Judge has improperly founded his judgment to some extent upon his personal recollection of what took place at the return of the interpleader summons, instead of confining himself strictly to the admissions of the parties.

The latter objection appears to be well founded. The Judge evidently assumes it as "a matter of fact" that the defendant had objected, on the trial of the interpleader suit, that there had been no seizure by the plaintiff of the goods in question, and that, on such objection being made, evidence was taken and a seizure proved.

If we thought there was any force in this objection, or that there had been a possible miscarriage of justice by reason of the learned Judge having proceeded on facts not admitted, we should, instead of allowing the appeal, direct the evidence to be now taken and reported to us, as there is clearly power to do in a County Court appeal: 45 Vict. ch. 6, sec. 7, O.

We are, however, of opinion that all the facts necessary to support the finding are properly to be inferred from the facts admitted, on the principle omnia præsumuntur rite esse acta. It is admitted that the plaintiff had the execution as bailiff, and that the interpleader summons was issued on his application. That execution, interpleader suit, and the present action all relate to the same goods. It must be assumed that the interpleader summons had been regularly issued under circumstances which gave the Court jurisdiction. That necessarily implies that the bailiff had taken the goods in execution, for unless he had done so he had no right to interplead. The claimant was therefore regularly before the Court, and the consent shews that he appeared “at the first day," which we take to mean at the first Court at which the summons was returnable. The case was then adjourned, with leave to him to file his claim, which, as it appears, he did not do. Not having

done so, and having offered no evidence, he was "barred" and ordered to pay the costs.

I have no doubt the claimant might, on the return of the interpleader summons, have shewn that there had been no seizure of the goods, and therefore that the bailiff had no right to interplead. That was his time to take the objection, although he may of course shew, if he can, in a subsequent action between himself and the execution creditor, or bailiff, that the seizure complained of had no relation to the interpleader. Here neither course was taken by him, or, if he did object on the trial of the interpleader that there had been no seizure, it must now be assumed that the Judge found that fact against him.

The case, therefore, turns upon the form of the order made in the interpleader proceeding and its effect.

Mr. Scott cited Challiner v. Burgess, 27 L. T. O. S. 78, Q. B. April 26, 1856, cited 2 U. C. L. J. 137, to shew that, unless there is an adjudication upon the claim in that proceeding, the claimant may still prosecute his claim by action in the usual way. No doubt that is so; but as the learned Judge of the County Court points out, the case cited turns upon a point of pleading. The defendant alleged only that the interpleader summons had been obtained, and that the plaintiff did not prosecute his claim, but made default, whereupon the goods were sold, &c. The objection was, that the plea shewed no adjudication or order made by the Judge or Court upon the default, so that the case was still pending and a fresh interpleader summons might be issued. The case decides nothing as to the form of the adjudication, but only that the plea shewed none.

Here the Judge made an order declaring the now defendant to be "barred." That, it is said, is not an adjudication. The objection is really a matter of form, and section 155 of the Division Courts Act enacts that no judgment, order, verdict, or other proceeding shall be quashed or vacated for any matter of form.

The cases of Oliphant v. Leslie, 24 U. C. R. 398, and