said assignment, amounted to $1,101.01. In this situation the present action was instituted December 22, 1905. April 30, 1907, when judgment was rendered awarding the balance on hand, less certain taxable costs, to the hat company, the amount due upon the Settle judgment exceeded such balance. The right of action in each of the actions brought by the hat company against Settle existed prior to October 1, 1902. Other facts found, having no bearing upon the questions discussed, are omitted.

Wolthausen and Bouton, the Essex County Trust Company, the Espencheid Hat Company, John C. Wilson and Settle are the parties defendant.

The plaintiff is, and during the whole period covered by the events which have culminated in the 603 present controversy has been, the clerk of the superior court in Fairfield county. The fund here involved is the balance of a larger one which was by order of said court, passed in an action therein pending, paid into court and into the plaintiff's hands as its depositary. That action was one in the nature of an interpleader brought by parties who were obligated to pay the amount so ordered to be paid into court and against two defendants who made conflicting claims upon the plaintiffs therefor, and the court was asked, in the exercise of its equitable powers, to adjudicate the rights of the claimants, and to award the fund to the person or persons found entitled to it. The money thus deposited with this plaintiff passed into the custody of the law. It was the res which was the subject matter of the action brought to determine its ownership and disposition. Such being its status, the court alone had authority over it, and that authority was one which could be properly exercised only through the medium of proceedings had in or relating to the pending cause. The jurisdiction which the court had over it could not be invaded by scire facias proceedings in the court of common pleas, or, for that matter, any other court. Its disposition could not be controlled from without or through any other channels than those which the law provides as incidental to a pending action. Methods are provided whereby persons asserting claims, new or old, to funds thus in court awaiting judicial disposition may present such claims to the consideration of the court, being admitted as parties for that purpose, if strangers to the cause. It became the privilege of the hat company, already a party, if it conceived that it had acquired a new status in relation to the money remaining in court, or a new right to share in it, to interpose

that claim. It was likewise the privilege of Wilson, as assignee of Settle, to apply to intervene in the action, and assert any claim which he thought that his situation justified. By no other course could either reach the fund and release it, or any part of it, from the judicial grasp which was upon it. This plaintiff, as the officer and depositary 604 of the court, could recognize no other authority than that which placed the money in his hands pending adjudication and judgment of distribution: Tuck v. Manning 150 Mass. 211, 22 N. E. 1001, 5 L. R. A. 666.

But that is not all. We have thus far considered the situation presented upon the assumption that no order of distribution of the balance now in contention had been made in the original action. Such, however, is not the fact. The balance, which the hat company and Wilson now claim, and which in the present action has been ordered paid to the hat company, was by the terms of the order passed in that action April 2, 1903, directed to be paid to the Essex County Trust Company, one of the then parties claimant, and the present plaintiff was ordered to so pay it. Such was the situation when the present proceeding was begun, and such it is to-day. The authority alone having jurisdiction to adjudicate as to the disposition of this res had adjudicated. The authority alone competent to command this plaintiff as to his conduct with it had commanded. The present resort to an independent action was therefore misconceived and irregular, as being in disregard of the plaintiff's relation to the money in his hands, of the authority of the court over it in the pending action, and of the order of the court passed therein, or, if it be that the authority of the court in that action had been finally exercised and final judgment rendered, then of the terms of that final judgment, and the present judgment awarding the fund to the hat company must, for that reason, be set aside.

The hat company's claim to the fund rests solely upon its institution of an action against Settle in which the plaintiff was named as garnishee, the service of the writ and complaint upon the latter, as required in garnishment proceedings, the rendition of final judgment in said action in favor of the hat company, the issuance of an execution thereon, and a demand thereunder upon the plaintiff. In answer to this claim it is urged that the money in the plaintiff's hands, being in the custody of the law, could 605 not be made the subject of foreign attachment. The hat company asserts the contrary proposition. The facts before

us disclose a decree of the court directing that the money in controversy be paid to a third party. We have no occasion, therefore, to determine the broad general question, to which the arguments of counsel were for the most part addressed, as to whether or not a fund deposited in court, as this was, can, under our statutes, be made the subject of foreign attachment with any effect. It is of course plain from what has already been said that it cannot, with the usual consequence that judgment may be followed by scire facias proceedings to appropriate the fund. The field of inquiry in this direction is, however, not exhausted in this statement. But we have no occasion to traverse it: See Conover v. Ruckman, 33 N. J. Eq. 303; Trotter v. Lehigh Z. etc. Co., 41 N. J. Eq. 229, 3 Atl. 95; Dunlop v. Patterson Fire Ins. Co., 74 N. Y. 145, 30 Am. Rep. 283; Wehle v. Conner, 83 N. Y. 231; Tuck v. Manning, 150 Mass. 211, 22 N. E. 1001, 5 L. R. A. 666; Colby v. Coates, 6 Cush. (Mass.) 558; Allen v. Gerard, 21 R. I. 467, 79 Am. St. Rep. 816, 44 Atl. 592, 49 L. R. A. 351; Winchell v. Allen, 1 Conn. 385; Stillman v. Isham, 11 Conn. 124. Neither have we occasion to decide the narrower question, sometimes distinguished from the former, as to the effect of garnishment proceedings upon a fund so placed in the hands of a depositary by order of court after the ownership of it has been adjudicated and an order paying it to the defendant in the attachment action has been passed: See Wilbur v. Flannery, 60 Vt. 581, 15 Atl. 203; Williams v. Jones, 38 Md. 555. The situation before us presents other controlling features.

A factorizing creditor can acquire no greater right to the effects of the defendant in the hands of the garnishee, or to any debt owing from the garnishee to the defendant or against the garnishee, than the defendant himself had at the time of the garnishment, unless it may be in cases of voluntary or fraudulent conveyances. He can only succeed in putting himself into the position with respect to the effects or debts attached that the defendant occupied: Fitch v. Waite, 5 Conn. 117; Harris v. Phoenix Ins. 606 Co., 35 Conn. 310; Parsons v. Root, 41 Conn. 161. Settle was the defendant in the action of the hat company. It was, therefore, his debt due from the present plaintiff that was sought to be attached. It was his position with respect to this plaintiff and the fund in his custody into which, giving the attempted garnishment all the effect that such proceedings ever have, the hat company could claim to have been admitted. Settle, however, when the attachment was served upon Shelton, had no claim

to any of the money in the latter's hands. All of that now in controversy had been awarded to the trust company, and Shelton was under the orders of the court to pay it to that company. Until that judicial award and order should be revoked, as it never has been, Settle was powerless to assert any claim against Shelton or to the fund in his keeping.

Furthermore, the money in court was the proceeds of a payment by Wolthausen and Bouton in satisfaction of a judgment in favor of the trust company. The order of April 2, 1903, which made disposition of this fund, recognized the force of this judgment and the rights it gave, save as they were affected by the equities of the situation created by the hat company's garnishment of Wolthausen and Bouton prior to the assignment of the note to the trust company. Settle's position and rights when the second garnishment was made must be determined in the light not only of the order of April 2, 1903, but also of the judgment which lay back of that order, which, together, made the legal right of the trust company to collect and receive the money complete and denied to Settle any right to receive it, save by force of the trust company's duty to account to him for it after it should have received it. Whatever interest Settle may have had to the money in the plaintiff's hands had none other than an equitable foundation, and equitable interests are not the subjects of foreign attachment, save as special statutes may have made them so: Judah v. Judd, 1 Conn. 309; Candee v. Penniman, 32 Conn. 228; Armstrong v. Cowles, 44 Conn. 44; Chase v. 607 Thompson, 153 Mass. 14, 26 N. E. 137; Burnham v. Hopkinson, 17 N. H. 259. The trial court, therefore, erred in giving to the garnishment of the plaintiff the effect it did in awarding the fund to the Espencheid Hat Company. There is error and the judgment is reversed.

In this opinion the other judges concurred.

The Right of Interpleader is the subject of a note to Connecticut Mutual Life Ins. Co. v. Tucker, 91 Am. St. Rep. 593.

A Balance of the Proceeds of a Sale of attached, perishable personal property, remaining in the custody of the clerk of the court after an execution in favor of the plaintiff has been satisfied, is not subjeet to garnishment or attachment by trustee process, by one of the defendant's creditors, as such balance, being still in the registry of the court, is in the custody of the law: Allen v. Gerard, 21 R. I. 467, 79 Am. St. Rep. 816.

LITHUANIAN BROTHERHELP SOCIETY v. TUNILA. [80 Conn. 642, 70 Atl. 25.]

JUDGMENT-Relief Against in Equity.-In a suit for equitable relief against a default judgment, on the ground that the defendant was misled by the statements of the plaintiff's attorney, an averment that the attorney gave the defendant to understand that no action had been, or would be, commenced, is sufficient without stating the precise language which misled. (p. 139.)

JUDGMENT-Relief Against in Equity.-Where, in an action against a benefit society, service is made on its secretary, a foreigner ignorant of our language, who, supposing the summons and complaint to be a notice to call at the office of the plaintiff's attorney, does so, and the attorney, though with no intent to mislead, gives him to understand that no action has been or will be commenced, a default judgment thereafter taken against the society, which has no knowledge of the proceedings, will be relieved against in equity upon the showing of a meritorious defense. (p. 140.)

NEW TRIAL.-The Court of Common Pleas has no jurisdiction to grant a new trial of an action brought before a justice of the peace, except under the provisions of section 816 of the General Statutes. (p. 140.)

Thomas J. Wall, for the appellant.

Samuel A. Herman, for the appellees.

643 HALL, J. The plaintiff is a voluntary association, of which the defendant is a member.

The complaint alleges substantially these facts: The defendant brought an action against this plaintiff to recover alleged "sick benefits," returnable before a justice of the peace on the 12th of June, 1907, the complaint in which was not otherwise served than by leaving, on the 7th of said June, an attested copy thereof at the place of abode of one Petrofski, the secretary of the society, and obtained judgment therein by default, on said return day, for fifty dollars damages and five dollars and seventy-six cents, costs, which he threatens to enforce.

The said secretary of the plaintiff society was a foreigner, and did not well understand and could not read English. He understood from his wife, and from what she informed him the officer leaving the copy had told her, that the copy was a notice to call at the office of the attorney for the defendant Tunila, which he did. The attorney informed him that he had the claim in question against the society for collection, but did not inform him that any suit had been brought upon it, but led Petrofski to believe that the society had better consider the matter, and settle the claim without litigation. At the same time Petrofski informed the attorney that Tunila