HYNDMAN-JONES C.J.

In this matter I have had an opportunity of reading the local case in the Court of Appeal-Lim Boon Keng v. Raman Chitty Not reported.

I was under the impression that the Court of Appeal had different from the decision of the Court in the case of Walker v. Olding 32 L.J. Ex. (N.S.) 142; but on the contrary they seem to have accepted that ruling and come to the conclusion that damages could not be recovered after the date of the order made on the interpleader. That is satisfactory because there is no necessity to distinguish the case. The only question then is whether the plaintiff is entitled to judgment for the amount of damages up to the date of the judgment on the interpleader issue, or only up to the date of the judgment on the interpleader issue, or only up to the time when the matter came into Chambers and the judge directed that an issue be tried; and I have come to the conclusion that Mr. Knowles' contention is right and that although it may be hard in some ways the plaintiff cannot recover damages after the last mentioned date.

This case was not disposed of in a summary manner but the Court made an order for the trial of an issue for the determination of the rights of the parties; and one party was made plaintiff and the other defendant on the issue. It is said that there was no direct order for the custody or sale of the property; but it seems to me that when the order was made by the Judge in Chambers the matter became sub judice; and although no order was made for the custody or sale of the property, it must be presumed that the property was to remain in the custody of the Sheriff meanwhile. This was the result of the Judge's order and that arrangement was come to under the indirect sanction of the Judge and therefore the property was particularly in custodia legis. The plaintiff cannot therefore claim damages after the date of the order.

There will be judgment for $49,50 damages from the 18th April 1907 to the 2nd May 1907, and I make no order as to costs.