§ 783. Replication.

If the defendants, or either of them, deny the allegations in a bill of interpleader, or set up distinct facts in bar of the suit, the complainant must reply to the answer and close the proofs in the usual manner, before he can bring his cause to a hearing."

§ 784. Injunction.

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On the filing of a bill of interpleader, a preliminary injunction will issue to restrain the prosecution of pending suits. It is an incident of the principal order that the defendants interplead. It makes no difference that positive injury to ensue is not made to appear. If the bill is entertained, the injunetion follows. Where the bill contains equity, an injunction will not be denied merely because an injunction would not have been necessary had another remedy been chosen.61 On motion for an injunction, the complainant's affidavit of noncollusion cannot be contradicted.62 The usual order for an injunction upon a bill of this nature is that it issue upon the complainant's Cogswell v. Armstrong, 77 Ill. 139; Michigan & Ohio Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086; Stevenson v. Anderson, 2 Ves. & B. 412. See Hambleton v. Rhind, 86 Md. 305, 38 Atl. 40. Where one of the defendants fails to interplead, and is defaulted, the complainant has no ground to dispute the claim of the interpleading defendant, who is entitled to a decree. Cogswell v. Armstrong, 77 Ill. 139. If the defendant not appearing is an absentee, the other defendant, who appears, will not be entitled to the possession of the fund until the expiration of the time limited by the statute for the absent defendant to appear, unless he give security to repay the money in case the absent defendant appears and establishes his right to it. 2 Barbour, Ch. Pr. 124, citing Aymer v. Gault, 2 Paige (N. Y.) 284. See McNamara v. Provident Sav. Life Assur. Soc., 114 Fed. 910, citing approvingly Beach, Mod. Eq. Pr. § 638; 2 Daniell, Ch. Pl. & Pr. (5th Ed.) 1494.

60 2 Barbour, Ch. Pr. 123; City Bank v. Bangs, 2 Paige (N. Y.) 570; Cullen v. Dawson, 24 Minn. 66; Glasner v. Weisberg, 43 Mo. App. 214. See Leonard v. Jamison, 2 Edw. Ch. (N. Y.) 136.

61 Curtis v. Williams, 35 Ill. App. 518.

62 Curtis v. Williams, 35 Ill. App. 518; Langston v. Boylston, 2 Ves. Jr. 101; Stevenson v. Anderson, 2 Ves. & B. 407; Manby v. Robinson,

4 Ch. App. 347; Toulmin v. Reid, 14 Beav. 499; Fahie v. Lindsay, 8 Or. 474.

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paying the money into court. This is a condition precedent, and an order for an injunction not containing it will be vacated. If the money cannot be paid in in time to stay a trial, application should be made to vary the order on the special grounds.64 Such injunction stays all proceedings. It may be moved for at once on payment of the money into court, and before the time for answering has expired.65

§ 785. Form of order for injunction on bill of interpleader. [Title of court and cause.]

On reading and filing the bill of interpleader in this cause, duly verified, and an affidavit of noncollusion [or containing an averment of noncollusion], on motion of E. F., solicitor for the complainant, it is ordered that an injunction issue, pursuant to the prayer of said bill, upon the complainant paying into the hands of the registrar [or clerk] of this court the sum of fourteen hundred dollars ($1,400) mentioned in the said bill.

If the bill does not show on its face a right to compel the defendants to interplead, a demurrer lies.66 Want of an affidavit of noncollusion is ground for demurrer, as is failure to show that each of the defendants claims a right.67 Where the objection appears on the face of the bill, it should be raised by de

63 2 Barbour, Ch. Pr. 123; Bliss v. French, 117 Mich. 538, 76 N. W. 73. 64 2 Barbour, Ch. Pr. 123; Sieveking v. Behrens, 2 Mylne & C. 581. 65 2 Barbour, Ch. Pr. 123; Warington v. Wheatstone, Jac. 205; Vicary v. Widger, 1 Sim. 15. See, also, James v. Sams, 90 Ga. 404, 17 S. E. 962; Weikel v. Cate, 58 Md. 105; Kuhl v. Traphagen's Ex'r, 9 N. J. Law J. 343; City Bank v. Bangs, 2 Paige (N. Y.) 570. Ordinarily, a special receiver will not be appointed to take possession of the property without notice, but there are exceptions to this rule, as where immediate action is necessary to prevent great loss or injury, and especially where it is not sought to dispossess the party of his property. Oil Run Petroleum Co. v. Gale, 6 W. Va. 525.

66 2 Barbour, Ch. Pr. 122.

67 2 Barbour, Ch. Pr. 122; Mitford, Eq. Pl. 143; Gibson v. Goldthwaite, 7 Ala. 281, 42 Am. Dec. 592; Shaw v. Chester, 2 Edw. Ch. (N. Y.) 405; Mount Holly, Lamberton & Medford Turnpike Co. v. Ferree, 17 N. J. Eq. 117; Shaw v. Coster, 8 Paige (N. Y.) 339, 35 Am. Dec. 690.

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murrer. Failure to so demur affects the allowance of costs.69 Failure to bring, or to offer to bring, the fund into court, is a ground of demurrer.70

8787. Answer.

The defendants may answer, admitting or denying the facts stated in the bill.71 It is held that the amount of the fund or matter in the hands of the complainant, upon which hostile claims are alleged to have been made, must be taken to be as stated by the complainant, and cannot be controverted by the answers for the purpose of having it adjudicated upon.72 If one of the defendants to a bill of interpleader in his answer makes a claim against the complainant beyond the amount admitted to be due and paid into court, and which is not claimed by the other defendants, he will be permitted to proceed at law to establish his right to that part of his claim not in controversy with the other defendants.73

§ 788. Cross bill.

A defendant in a strict interpleader suit cannot have relief by cross bill against the complainant.74

68 2 Barbour, Ch. Pr. 123; Shaw v. Coster, 8 Paige (N. Y.) 339. 69 2 Barbour, Ch. Pr. 123.

70 Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. 71 2 Barbour, Ch. Pr. 123. An answer denying the right to the relief prayed saves the objection to the case made by the bill, where it prays that the same advantage may be had of the answer as of a demurrer. Sachsel v. Farrar, 35 Ill. App. 277.

72 Adams v. Dixon, 19 Ga. 513; Atkinson v. Manks, 1 Cow. (N. Y.) 704.

73 2 Barbour, Ch. Pr. 123; City Bank v. Bangs, 2 Paige (N. Y.) 570. But see Orient Ins. Co. v. Reed, 81 Cal. 145, 22 Pac. 484.

74 Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680. But it has been held that a cross bill by one of two persons against whom a bill of interpleader is filed, setting up that there was a much larger sum in complainant's hands collected by him as an attorney, and praying for a discovery and account, is properly filed. Owen v. Apel, 68 IIL 391. See, also, Penn Mut. Life Ins. Co. v. Union Trust Co. of San Francisco, 83 Fed. 891.

§ 789. Evidence.

In an interpleading suit, the answer of one of the defendants. may be read against the others.75 Upon the hearing in such a suit, evidence is admissible to show that the complainant has retained possession of the subject of the suit under an indemnity from some of the defendants.76

§ 790. Hearing and decree.

If the defendants or either of them deny the allegations in the bill, or set up distinct facts, the complainant must reply and close the proofs in the usual manner before he can bring his cause to a hearing; but where the defendant admits the facts stated in the bill, and on which the right to file such a bill rests, and sets up no new facts as against the complainant, or in bar of his suit, it seems to be sufficient for him to file a replication, and to set the cause down for a decree to interplead, without waiting until the proofs are taken as between the defendants.77

* In an interpleader suit,

75 2 Barbour, Ch. Pr. 124; Bowyer v. Pritchard, 11 Price, 103. ""The general rule is well established that the answer of one defendant cannot be read in evidence against another defendant. There are, however, many exceptions to the rule. the complainant's office is widely different from that of a complainant in an ordinary suit in equity seeking to avoid a liability or to enforce some right against the defendant. Here the complainant comes into court with the money in his hand to discharge an acknowledged debt, which he is prevented by conflicting claims from paying to either of the claimants with safety to himself. His duty appears to be at an end when he has brought the rival claimants to interplead by filing their answers and putting the suit at issue. It is true he must show by his bill that each of the parties claims a right, else he makes out no case; but that is his whole case, and when the court sees, by the respective answers, that each defendant has made such claim, I can perceive no well-grounded reason for putting the complainant to other proof of that fact against the opposing defendants, respectively. That proof, if made by testimony, would consist almost entirely of the declarations and admissions of the respective defendants,' etc." Morrill v. Manhattan Life Ins. Co., 183 Ill. 260, 55 N. E. 656, quoting Balchen v. Crawford, 1 Sandf. Ch. (N. Y.) 380.

76 2 Barbour, Ch. Pr. 124; Statham v. Hall, Turn. & R. 30. 77 City Bank v. Bangs, 2 Paige (N. Y.) 570.

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The court disposes of the questions arising upon bills of interpleader in various modes, according to the nature of the question and the manner in which it is brought before the court. It is at liberty to take any recognized method of trial which will best accomplish justice in the particular case. The practice is to first determine whether the interpleader will lie or not. If not, it is unnecessary to go further, but, if it will, then the complainant should be discharged from liability, with his costs, upon bringing the money or thing in dispute into court, and is thenceforth out of the suit, and the suit should thereupon proceed upon issues properly joined between the defendants.79 The only decree that can be made in a strict interpleader suit in favor of the complainant and against the defendants is that the complainant's bill was properly filed, giving him leave to bring the property in dispute into court, and allowing him costs out of the property, and directing the defendants to interplead and settle the conflicting claims which they set up to the property among themselves.80 The case then becomes a case be

78 2 Barbour, Ch. Pr. 124; Kirtland v. Moore, 40 N. J. Eq. 106, 2 Atl. 269; Temple v. Lawson, 19 Ark. 149.

79 North Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799, 52 Am. St. Rep. 780; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Minn. 7; First Nat. Bank of Brattleboro v. West River R. Co., 46 Vt. 633; Farley v. Blood, 30 N. H. 354; Hall v. Baldwin, 45 N. J. Eq. 858, 18 Atl. 976; Cullen v. Dawson, 24 Minn. 66. Where the decree on a bill of interpleader fully adjudicates the rights of the parties, and directs what party is entitled to the fund, the fact that a separate decree or order of inte. pleader was not entered can have no force. People's Sav. Bank v. Look, 95 Mich. 7, 54 N. W. 629.

So Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680; Sammis v. L'Engle, 19 Fla. 800; Newhall v. Kastens, 70 Ill. 156; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Farley v. Blood, 30 N. H. 354. A decree passed upon the filing of a bill of interpleader ordering the complainant to pay the money into court, and requiring the defendants to interplead and answer, is interlocutory, settling the rights of no party, and is at all times prior to a final decree subject to revision and alteration. being merely ancillary to further proceedings. Barth v. Rosenfeld 36 Md. 604; Owings v. Rhodes, 65 Md. 408, 9 Atl. 903; Heald v. Rhind, 86 Md. 320, 38 Atl. 43. A decree of interpleader does not acquit the complainant of accountability for any other moneys than those paid