the complainant denies any indebtedness, and that he has any funds in his hands on which any of the parties defendant have any claim, and his bill shows that he has a complete defense against each of the defendants.15 It will not lie if the complainant is obliged to admit that, as to either of the defendants, he is a wrongdoer. Thus, a sheriff who, by virtue of an execution, levies upon property claimed by a third person and the plaintiff in the execution, may not file a bill of interpleader against such third person and the plaintiff in the execution to have them settle the right to the property between themselves.16 Such a bill does not lie at the suit of a member of a board of trade to compel persons to whom he has sold grain, and who are claiming damages for breach of contract, to litigate with the principal from whom the grain was purchased the question of the right to the fund deposited by the principal as margins.17 A bill of interpleader will not lie where a question to be tried is whether, by reason of the complainant's own act, he is under liability to each of the defendants.18 It will

self as well as he can against each separate demand,—a court of equity will not grant him an interpleader. 3 Pomeroy, Eq. Jur. §§ 1323, 1324; Story, Eq. Pl. § 293; Gibson v. Goldthwaite, 7 Ala. 281." Kyle v. Mary Lee Coal & Railway Co., 112 Ala. 606, 20 So. 851.

15 Hellman v. Schneider, 75 Ill. 422.

16 2 Barbour, Ch. Pr. 118; Shaw v. Coster, 8 Paige (N. Y.) 339; Tyus v. Rust, 37 Ga. 574, 95 Am. Dec. 365; Quinn v. Green, 36 N. C. 299, 36 Am. Dec. 46; Coleman v. Chambers, 127 Ala. 615, 29 So. 58; Slingsby v. Boulton, 1 Ves. & B. 334. Where there are no adverse claims to the

money in the hands of the complainant, the bill will not lie.

v. Moore, 184 Ill. 119, 56 N. E. 317.

17 Ryan v. Lamson, 153 Ill. 520, 39 N. E. 979.

Partlow

18 National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93; Newman v. Commercial Nat. Bank, 156 Ill. 530, 41 N. E. 156; Cochrane v. O'Brien, 2 Jones & L. 380; Desborough v. Harris, 5 De Gex, M. & G. 439. "The office of an interpleading suit is not to protect a party against a double liability, but against double vexation in respect of one liability. If the circumstances of a case show that the plaintiff is liable to both claimants, that is no case for interpleader. It is of the essence of an interpleading suit that the plaintiff shall be liable to one only of the claimants, and the relief which the court affords him is against the vexation of two proceedings on a matter which may be settled in a

20

lie, though the claim of one of the defendants be legal and the other equitable.19 A bill of interpleader will lie though the complainant holding the disputed fund has not been sued at all, or has been sued by one only of the conflicting claimants.2 It is laid down as a rule that bills of interpleader ought not to be encouraged, and should not be filed except in cases where the complainant can in no other way be protected from unjust litigation in which he has no interest,21 and that it is not necessary to file a bill of interpleader where the holder of the fund is already a party to a suit in a court of chancery brought by one claimant against the other to settle the right to the funds in his hands. The holder of the fund in such a case may apply by petition in that suit for leave to pay the fund into the court, to abide the event of the litigation between the other parties.22 But it has single suit." Connecticut Mut. Life Ins. Co. v. Tucker (R. I.) 49 Atl. 26; Crawford v. Fisher, 1 Hare, 436; National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93. "The rule is well settled that a complainant who is under any personal liability to defendant in respect to the matter concerning which he asks that defendant be compelled to interplead cannot maintain his suit against him." Ter Knile v. Reddick (N. J. Eq.) 39 Atl. 1062; Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680.

19 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Newhall v. Kastens, 70 Ill. 156; Richards v. Salter, 6 Johns. Ch. (N. Y.) 445; Westervelt v. Ackerman, 3 N. J. Eq, 325; McClintock v. Helberg, 168 Ill. 384, 48 N. E. 145. Where one claims a fund under a contract with the holder thereof, and another claims a part thereof under a contract with the contractor, the holder may file a bill of interpleader, and it is not necessary, to sustain such bill, that each of the claimants assert a right under contract with the holder. Ireland v. Kelly, 60 N. J. Eq. 308, 47 Atl. 51. See, also, Lapenta v. Lettieri, 72 Conn. 377, 44 Atl. 730.

20 Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Newhall v. Kastens, 70 Ill. 156; Richards v. Salter, 6 Johns. Ch. (N. Y.) 445; School Dist. No. 1 of Grand Haven v. Weston, 31 Mich. 85.

21 2 Barbour, Ch. Pr. 120; Badeau v. Rogers, 2 Paige (N. Y.) 209; Curtis v. Williams, 35 Ill. App. 533; Green v. Mumford, 4 R. I. 313; Shaw v. Chester, 2 Edw. Ch. (N. Y.) 405; Long v. Barker, 85 Ill. 431; Killian v. Ebbinghaus, 110 U. S. 568.

22 2 Barbour, Ch. Pr. 120; Bedell v. Hoffman, 2 Paige (N. Y.) 199. See, also, Curtis v. Williams, 35 Ill. App. 518; Lowe v. Richardson, 3 Madd. 277.

been also held that the mere fact that a party has another equitable remedy will not prevent him from maintaining a bill of interpleader;23 and there are decisions in which the right to file a bill of interpleader has been sustained, even when a bill was already pending in which all the parties were in court, and injunctions have, in such cases, been issued in the interpleader suit to restrain proceedings in the prior suit.24

§ 774. When the bill should be filed.

A bill of interpleader ought to be filed immediately after or before the commencement of proceedings at law, and should not be delayed until after a verdict or judgment has been obtained.25

§ 775. Frame of a bill of interpleader.

The complainant must show that he is a mere stakeholder, without personal interest in the controversy, and that the respective claims of the parties claiming the funds or property in his hands are of the same nature and character;26 and that

23 Curtis v. Williams, 35 Ill. App. 531. See Board of Education of City of Atchison v. Scoville, 13 Kan. 17.

24 Curtis v. Williams, 35 Ill. App. 518; Kuhl v. Traphagen's Ex'r, 9 N. J. Law J. 343; Warington v. Wheatstone, Jac. 203; Morgan v. Marsack, 2 Mer. 107; Crawford v. Fisher, 10 Sim. 479; Prudential Assurance Co. v. Thomas, 3 Ch. App. 74.

25 2 Barbour, Ch. Pr. 120; Cornish v. Tanner, 1 Younge & J. 333; Moore v. Hill, 59 Ga. 760; Union Bank of Maryland v. Kerr, 2 Md. Ch. 460; Yarborough v. Thompson, 3 Smedes & M. (Miss.) 291, 41 Am. Dec. 626; Haseltine v. Brickey, 16 Grat. (Va.) 116; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. See, however, Westervelt v. Ackerman, 3 N. J. Eq. 325. But defending a suit at law, if it be not too far persisted in, will not prevent the filing of the bill. Curtis v. Williams, 35 Ill. App. 518; Jacobson v. Blackhurst, 2 Johns. & H. 486. And it has been held that it was no objection to an interpleader that it was filed after a verdict at law, where the action at law was only to ascertain the amount of damages. Hamilton v. Marks, 5 De Gex & S. 638.

26 2 Barbour, Ch. Pr. 120; Story, Eq. Pl. § 293; Shaw v. Coster, 8 Paige (N. Y.) 339; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Anderson v. Wilkinson, 10 Smedes & M. (Miss.) 601; McEwen v. Troost, 1 Sneed (Tenn.) 186.

he is ignorant of the rights of the respective parties who are called upon by him to interplead; or that at least there is some doubt, in point of fact, to which claimant the debt or duty belongs, so that he cannot safely pay or render it to one, without risk of being liable for the same debt or duty to the other.27 Such a bill cannot be sustained where, from the bill itself, it appears that one of the defendants is clearly entitled to the debt or duty claimed, to the exclusion of the other. It is necessary that the complainant should be uncertain to whom the right belongs.28 The complainant must show that he has a right to compel the defendants to interplead, whatever rights they may claim; otherwise, the bill will be dismissed, however proper in other respects the case might be for interpleader.29 The bill should also show that there are proper persons, in esse, capable of interpleading and of setting up opposite claims, for otherwise the objects of the bill would be unattainable.30 The claims of the defendants should be specifically set forth, so that they may appear to be of the same nature and character, and a fit subject of a bill of interpleader.31 The bill would be defective if it did not admit and show a title in each of the claim

27 2 Barbour, Ch. Pr. 121; Shaw v. Coster, 8 Paige (N. Y.) 339; State Ins. Co. v. Gennett, 2 Tenn. Ch. 82.

28 2 Barbour, Ch. Pr. 118, 119; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Varrian v. Berrien, 42 N. J. Eq. 1, 10 Atl. 875.

29 2 Barbour, Ch. Pr. 121; Mitford, Eq. Pl. 142; McEwen v. Troost, 1 Sneed (Tenn.) 186; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901.

30 Story, Eq. Pl. § 295; 2 Barbour, Ch. Pr. 121; Metcalf v. Hervey, 1 Ves. Sr. 248.

31 Story, Eq. Pl. § 294; 2 Barbour, Ch. Pr. 121; Varrian v. Berrien, 42 N. J. Eq. 1, 10 Atl. 875. But complainant should not attempt to show facts on which the title of each claimant is based, but should state only generally the nature of their claims. Shaw v. Coster, 8 Paige (N. Y.) 339, 35 Am. Dec. 690; Westervelt v. Ackerman, 3 N. J. Eq. 325; Dungey v. Angove, 2 Ves. Jr. 311. He is not expected to set forth such claims with as much accuracy as the claimants themselves would do. Westervelt v. Ackerman, 3 N. J. Eq. 325.

(817)

ants.82 The complainant must also offer to bring the fund in dispute into court to enable the court to compel a compliance with such offer upon the application of either of the other parties, and it is said by Lord Redesdale that, if he does not do so, it is perhaps, in strictness, a ground for demurrer.33 If such offer is not made, the court; upon application of either of the defendants, will order the complainant to bring the property or pay the money into court.34 If the claim is for goods, it is sufficient to offer to bring the value of the goods into court. The bill should pray that the defendants may set forth their several titles, and may interplead and settle and adjust their demands between themselves, and that the complainant may be indemnified.36 If any suits at law are brought against the complainant, the bill may also pray for an injunc tion to restrain the claimants from proceeding until the right is determined, but, in general, the money must be brought into court before it will act on this part of the prayer.37

35

32 2 Barbour, Ch. Pr. 121; Story, Eq. Pl. § 296; Mitford, Eq. Pl. 141, 142; East India Co. v. Edwards, 18 Ves. 376; Pusey & Jones Co. v. Miller, 61 Fed. 401; Crass v. Memphis & C. R. Co., 96 Ala. 447, 11 So. 480; Starling v. Brown, 7 Bush (Ky.) 164.

33 Gardiner Sav. Inst. v. Emerson, 91 Me. 535, 40 Atl. 551; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901; 2 Barbour, Ch. Pr. 122; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Shaw v. Coster, 8 Paige (N. Y.) 339; Starling v. Brown, 7 Bush (Ky.) 164; Chase v. Manhardt, 1 Bland (Md.) 333; Ammendale Normal Inst. v. Anderson, 71 Md. 128, 17 Atl. 1030; Parker v. Barker, 42 N. H. 78, 77 Am. Dec. 789; Barroll v. Forman, 88 Md. 188, 40 Atl. 883. A demurrer will not lie in such a case, although complainant must pay the money in before taking any steps in the case. Meux v. Bell, 6 Sim. 175; Nash v. Smith, 6 Conn. 421. See, also, Blue v. Watson, 59 Miss. 619; Shaw v. Chester, 2 Edw. Ch. (N. Y.) 405.

841 Maddock, Ch. Pr. 143; Nash v. Smith, 6 Conn. 421.

85 Burnett v. Anderson, 1 Mer. 405. Where land is the subject of the controversy, the complainant ought to make conveyances of the same, ready for delivery to each of the claimants, and if he has not done so at the filing of the bill, and in the bill offered to deliver a deed to the party who shall be decreed to be entitled, the court will order such deeds to be made and filed with the clerk, subject to further order. Farley v. Blood, 30 N. H. 354.

36 2 Barbour, Ch. Pr. 122; Mitford, Eq. Pl. 49.

37 2 Barbour, Ch. Pr. 122; Mitford, Eq. Pl. 49;