81 tween the defendants, as between a complainant and defendant. The parties defendant stand before the court to litigate the questions of right pending between them to the same extent as if one had brought a bill against the other, predicated upon the same matter, and for the same purpose, and it is competent for them to make such adjustment of the controversy between them as they think best, and thus end the suit.82 If the cause is ripe for a decision between the defendants, as well as between them and the complainant, the court settles the conflicting claims of the parties, and makes a final decree on the first hearing; but if it is not in readiness for a decision as between the defendants, the court merely decides that the bill is properly filed, and dismisses the complainant with his costs up to that time, and directs an action to be brought, or an issue, or a reference, to ascertain and settle the rights of the defendants to the fund in controversy.83 Where sufficient appears on the pleadings to enable the court to judge between the defendants, it will proceed to do so.84 If one of two parties defendant withdraws all claim to the fund, a decree that it be paid to the other is of course.85 Upon reference to a master to settle the rights of the defendants as between themselves, the court will give them the benefit of a discovery as against each other if they or either of into court, and the dismissal of the complainant should be without prejudice to the right of any and of all the defendants to institute any action at law or in equity to recover from the complainant any demands which they or any of them may have for amounts due from him over and above the money paid into court. Lamon v. McKee, 7 Mackey (D. C.) 446. 81 Rowe v. Matteson, 7 N. J. Eq. 131; Willson v. Salmon, 45 N. J. Eq. 257, 17 Atl. 815; Leonard v. Jamison, 2 Edw. Ch. (N. Y.) 136; Jennings v. Nugent, 1 Moll. 134; Anonymous, 1 Vern. 351. 82 Horton v. Baptist Church & Soc. in Chester, 34 Vt. 309. 83 City Bank v. Bangs, 2 Paige (N. Y.) 570; Angell v. Hadden, 16 Ves. 203. See Sammis v. L'Engle, 19 Fla. 800; Farley v. Blood, 30 N. H. 354; Condict's Ex'rs v. King, 13 N. J. Eq. 375; First Nat. Bank of Brattleboro v. West River R. Co., 46 Vt. 633; North Pacific Lumber Co. v. Lang, 28 Or. 246, 42 Pac. 799; Gibson v. Goldthwaite, 7 Ala. 281. 84 Farley v. Blood, 30 N. H. 354. 85 Knight v. Yarborough, 7 Smedes & M. (Miss.) 179. them desire it.86 It has been held that if, at the time of filing the bill of interpleader, there was some plausible apprehension of a two-fold responsibility, yet if, before final decree, the danger be removed, the equity on which the bill relies will entirely fail, and it will be dismissed.87 If the bill is dismissed, there can be no further proceedings as between the defendants, for the court has no jurisdiction.88 If the bill is properly filed, the complainant is entitled to his costs out of the fund,89 but he is not, if the bill is improperly filed.90 The court may allow a complainant, where the bill is properly filed, his reasonable expenses, including solicitor's fees.91 The defendant who has, by his wrongful claim, occasioned the suit, will ordinarily be required to pay the costs of the other defendant, and the costs of the complainant.92 86 City Bank v. Bangs, 2 Paige (N. Y.) 570. It is usually correct to confine the inquiry as to the rights of the claimants to ascertaining which one has the exclusive property in or right of possession of the thing in controversy, but the court may so shape its decree and distribute the fund as to do complete equity between the parties, where the claimants have interpleaded and made no such objection to such a decree. Chandler v. Morey, 195 Ill. 596, 63 N. E. 512; Whitney v. Cowan, 55 Miss. 626. On a bill of interpleader which assumes that the complainant is a mere stakeholder, the complainant cannot be heard as to his liability. National Ins. Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93; St. Louis Life Ins. Co. v. Alliance Mut. Life Ins. Co., 23 Minn. 7. 87 Kerr v. Union Bank of Maryland, 18 Md. 396. 88 2 Barbour, Ch. Pr. 125; Jennings v. Nugent, 1 Moll. 134; Anonymous, 1 Vern. 351. 89 2 Barbour, Ch. Pr. 125; Aymer v. Gault, 2 Paige (N. Y.) 284; Spring v. South Carolina Ins. Co., 8 Wheat. (U. S.) 268; Mason v. Hamilton, 5 Sim. 19. 90 Bedell v. Hoffman, 2 Paige (N. Y.) 199. See, also, Badeau v. Rogers, 2 Paige (N. Y.) 209; Atkinson v. Manks, 1 Cow. (N. Y.) 691. 91 Louisiana State Lottery Co. v. Clark, 16 Fed. 20; McCall v. Walter, 71 Ga. 287; Stevens v. Germania Life Ins. Co. (Tex. Civ. App.) 62 S. W. 824. See, also, Farley v. Blood, 30 N. H. 354. But see Insurance Co. v. Corbin, 12 Phila. (Pa.) 257; Groves v. Sentell, 153 U. S. 483; Cobb v. Rice, 130 Mass. 231; Gardiner Sav. Inst. v. Emerson, 91 Me. 535, 40 Atl. 551; McNamara v. Provident Sav. Life Assur. Soc., 114 Fed. 910. 92 Farley v. Blood, 30 N. H. 354. If complainant acts unfairly and collusively, the costs will be taxed against him. Michigan & Ohio Plaster Co. v. White, 44 Mich. 25, 5 N. W. 1086. Ch. 41] BILLS OF INTERPLEADER. § 791 § 791. Form of interlocutory decree on bill of interpleaaer directing a reference. [Title of court and cause.] This cause having been this day brought on to be heard upon the bill of interpleader filed therein, upon the answers of the defendants, and the replication thereto, and the court having heard the argument of E. F., solicitor for the complainant, and R. S., solicitor for the defendant C. D., and W. H., solicitor for the defendant D. S., and being fully advised in the premises: It is ordered, adjudged, and decreed that the bill of interpleader is properly filed, and that the defendants do interplead and settle the matters in controversy in this suit between themselves, and for that purpose it is ordered, adjudged, and decreed that it be referred to G. B., one of the masters in chancery of this court, to inquire and report which of the defendants is entitled to the fund in controversy, and which has been deposited with the clerk of this court, and, if the said master shall be of opinion that any two or more of the defendants are equitably entitled to share in the same, that he also ascertain and report what portion of the fund belongs to each. And it is further ordered that, previous to the examination of any witness before the said master, either of the parties may present to said master on oath a written statement of his claim, and of the facts and circumstances on which it is founded, which statement shall be answered on oath by all the other defendants, to the satisfaction of the said master, and with like effect as if such answer were filed to a bill of discovery, and that, upon such reference, either party is at liberty to proceed before said master in such manner as said master shall direct; and that the solicitor of each defendant have notice of all proceedings before the said master. And it is further ordered, adjudged, and decreed that the said complainant be dismissed, with his costs of suit up to this time, to be taxed, to be paid out of the said fund in court; and this court does reserve the consideration of all questions of costs as between the said defendants, and all other questions and directions, until the coming in of the master's report, but with liberty to either party to apply for such other instructions or directions to the master as may be necessary or proper pending the reference. § 792. Bills in the nature of a bill of interpleader. It is laid down by some authorities that in many cases a bill in the nature of a bill of interpleader will lie by a party in interest to ascertain and establish his own rights where there are other conflicting rights between third persons, though he could not file a bill of interpleader, strictly so called.93 A learned authority has said: "As, for instance, if a plaintiff is entitled to equitable relief against the owner of property, and the legal title thereto is in dispute between two or more persons, so that he cannot ascertain to which it actually belongs, he may file a bill against the several claimants in the nature of a bill of interpleader for relief. So, it seems, a purchaser may file a bill in the nature of a bill of interpleader against the vendor or his assignee, and any creditor who seeks to avoid the title of the assignee, and pray the direction of the court as to whom the purchase money shall be paid. So, if a mortgagor wishes to redeem the mortgaged estate, and there are conflicting claims between third persons as to their title to the mortgage money, he may bring them before the court to ascertain their rights, and to have a decree for a redemption, so that he may make a secure payment to the party entitled to the money. In these cases, the plaintiff seeks relief for himself; whereas, in an 'interpleading bill,' strictly so called, the plaintiff only asks that he may be at liberty to pay the money or deliver the property to the party to whom it of right belongs, and may thereafter be protected against the claims of both. In the latter case the only decree to which the plaintiff is entitled is a decree that the bill is properly filed, or, in other words, that he shall be at liberty to pay the money or bring the property into court, and have his costs, and that the defendants interplead, and settle the conflicting claims between themselves. So, a bill in the nature of an interpleading bill will lie by a bank which has offered a reward for the recovery of money stolen, and a proportionate reward for a part recovered, where there are several claimants of the reward, or a proportion thereof, one or more of whom have sued the bank. And in such a bill, all the claimants may be made parties, in order to have their respective 98 Provident Sav. Life Assur. Soc. v. Loeb, 115 Fed. 357; Story, Eq. Pl. § 297b; 2 Story, Eq. Jur. § 824; Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Bedell v. Hoffman, 2 Paige (N. Y.) 199. claims adjusted."94 The statements of Mr. Justice Story have been criticised by the courts, and it has been said that the only distinction between a bill of interpleader and one in the nature of a bill of interpleader is that in the former case the complainant only asks to be permitted to pay the money into court, and thereupon to be discharged from liability to the adverse claimants, while, in the other, he claims some independent other relief to which he will be entitled upon the payment of the money, and that in no case has it been found that the complainant claimed any interest in the fund itself; and it is further said that it is only in cases in which the complainant is entitled to come into court upon some other ground of equitable jurisdiction that he may, for the purpose of obtaining full relief, make defendants to his bill all parties claiming an interest in the money due by him.95 94 Story, Eq. Pl. § 297b; Curtis v. Williams, 35 Ill. App. 518; Koppinger v. O'Donnell, 16 R. I. 417, 16 Atl. 714; Newhall v. Kastens, 70 Ill. 156. See, also, 2 Story, Eq. Jur. § 824, citing Mohawk & H. R. Co. v. Clute, 4 Paige (N. Y.) 384; Parks v. Jackson, 11 Wend. (N. Y.) 443; Bedell v. Hoffman, 2 Paige (N. Y.) 199; Mitchell v. Hayne, 2 Sim. & S. 63; Meux v. Bell, 6 Sim. 175; Anonymous, 1 Vern. 351; City Bank v. Bangs, 2 Paige (N. Y.) 570; Atkinson v. Manks, 1 Cow. (N. Y.) 691; Goodrick v. Shotbolt, Finch, Prec. Ch. 333 et seq.; Home Life Ins. Co. of New York v. Caulk, 86 Md. 385, 38 Atl. 901. * 93 Blue v. Watson, 59 Miss. 619, distinguishing many of the authorities cited by Mr. Justice Story. See, also, Dorn v. Fox, 61 N. Y. 264, distinguishing these bills. "It is contended, however, that this is a bill in the nature of a bill of interpleader, and that such a bill lies by a party in interest to ascertain and establish his own rights, where there are other conflicting rights between third persons. This rule is thus stated in 2 Daniell, Ch. Pr. 1571, Story, Eq. Pl. § 291, and Pomeroy, but the cases cited in support of the text, and the general principles declared by the text and authorities, do not authorize the application of the rule to cases like the present, where the complainant seeks to mingle up and enforce a demand of his own upon the property or thing with the demand that the other persons shall interplead. There can be no bill of interpleader, or bill in the nature of a bill of interpleader, when the defendants contest and litigate with the plaintiff himself as to the validity and allowance of a claim set up by himself. Such a rule is at variance with the very nature and (833) |