Abbildungen der Seite
PDF
EPUB

Injunctions at least in England: the last instance of a deterto quiet pose mination upon it, is in the case of Hughes v. Morden the hearing. College (a), where Lord Hardwicke granted an in

junction upon the application of the plaintiff (who was a lessee of the trustees of the college) to restrain the commissioners of the turnpike, (to whom the trustees had granted leave to dig gravel,) from forcibly entering the plaintiff's garden and digging

gravel in it. Injunctions Bills of this nature are said to be still in use in to quiet pos- Ireland (b). The following history of the practice fore hearing upon them, is given in a note to the last edition of common in Ireland.

Brown's Parliamentary Cases (c). After noticing the provisions of the statutes of forcible entry, which have been introduced into that country, it is stated that instead of resorting to a justice of the peace, or preferring an indictment, in order to repel the intruder, and to get restitution of possession, the practice has usually obtained, of resorting to the jurisdiction of courts of equity, by exhibiting what is termed a possessory bill (a measure peculiar to that country) (d); which alleges a peaceable triennial possession in the person so dispossessed, or in his ancestors, or in those whose estate he hath ; also a force committed and the title still in being, and neither prays process to answer, nor any relief, but an injunction only to restore and quiet the possession; and on certificate of the bill being filed, and on affidavit of the possession and ouster, the in

(a) i Ves. 188.
(6) Goodeson v. Gallatin, 1 Dick. 455.
(c) Ed. Toml. vol. 2. p. 28.
(d) This we see is an error.

junction issues of course to the defendant (a), who Injunctions is made to answer upon personal interrogatories, as session before in the case of a contempt; and in default of clearing the hearing. his contempt, he is attached until payment of the costs; and when the cause comes to a hearing, an injunction issues to the sheriff to establish the possession, till eviction by due course of law. But as this hearing determines the possession only, and that in a summary way, till eviction by due course of law, the right is considered as a matter collateral and extrinsic, and is neither entered into nor prejudiced, but reserved for more solemn decision in a proper suit to be instituted for that purpose. .

There are two precedents of appeals from Ireland (neither of them of a very ancient date), in which the subject came under the consideration of the House of Lords (6).

An injunction of this nature does not prevent the Effect of, defendant from suing at law, making a lease, or dissolved. taking a distress; and it may be dissolved if the plaintiff delays his suit (c).

and how

That which is commonly called a bill of Inter. Definition of

interpleader. pleader, is defined by the Practical Register to be a

(a) The practice is stated to have been the same in England, and an injunction has even been granted before service of the subpæna to answer. Pearce v. Penrose, Bunb. 110.

(6) Vernon v. City of Dublin, in 1733, 4 Bro. P. C. Ed, Toml. 398. Edgeworth v. Edgeworth, in 1766, 2 ib. 27.

(c) 14 Vin, Ab. 233, citing P. R. C. 215. Curs. Can. 451.

Interpleader. bill exhibited by a third person, who not knowing

to whom he ought of right to render a debt or duty, or pay his rent, fears he may be hurt by some of the claimants, and therefore prays that they may interplead, so that the court may judge to whom the thing belongs, and he be thereby rendered safe on the payment (a). And this he may do whether suits be actually commenced against him in law or in equity, or he is only in danger of being sued or molested by the parties (6).

The generality of bills of interpleader are by file a bill of interpleader

. persons standing in the situation of stakeholders, as

Who may

(a) Lord C. B. Gilbert, in his Forum Romanum, (p. 47.) has compared our practice of interpleader in equity to the intervention of the civil law. He must, however, be understood to apply this observation to a process totally dissimilar from any thing which is at present known by the term interpleader. As for instance, where a person as mortgagor files a bill against the mortgagee to redeem, and another person who has a right to redeem prefers his bill against both, to remove the first plaintiff and to redeem the defendant. This and all the other cases which he cites (except one) though resembling the doctrine of intervention, are by no means cases of interpleader. The practice adopted by our courts of equity, is more probably taken from the doctrine of interpleader at common law, from whence it has received its name, than from that of intervention in the civil : no two processes indeed can be more dissimilar. The tertius in our interpleader in equity, professes to have no interest in the subject, and calls upon the parties, who allege that they have, to come forward and discuss their claims; the tertius of the civil law, on the other hand, asserts a right in himself to the subject, which two other persons are at the time actually contesting, and insists upon his right to join the discussion. The reader will find the doctrine of intervention (which may perhaps be found useful in many cases in equity) very elaborately discussed by Gaill. Pract. Obs. Lib. 1. 69.

(6) Pr. Reg. Ed. Wy. 78. Har. Ch. Pr. 45.

vexation of

auctioneers, agents, factors, &c. (a). Where a house Interpleader. which had been insured was burnt down, and the insurance company were both sued by the tenant in equity and by the landlord at law, they were considered entitled to file a bill of interpleader (6).

The true principle upon which the relief given in Principle of cases of interpleader, is founded, is the right which the relief the party has to protection, not from being com- from the pelled to pay, but from the vexation attending all several suits. the suits, which may possibly be instituted against him (c). The determination in the Duke of Bolton v. Williams (d), which is a leading case upon this subject, is a strong illustration of this principle. The Duke being the owner of an estate upon which a rent charge was secured, filed a bill to compel the grantee and the executors of persons to whom it had been assigned to interplead. Lord Thurlow, upon the hearing of the cause, granted a perpetual injunction against the latter, which was afterwards affirmed by Lord Rosslyn upon a re-hearing (e). This relief, as has been observed by Lord Eldon, did not properly belong to a strict bill of interpleader; which merely required it to be decided to whom the arrears of the annuities were to be paid; yet as

(a) Aldridge v. Mesner, 6 Ves. 418. Sutton v. Earl of Scar. borough, cit. 9 Ves. 73. Martinius o. Helmuth, Coop. 245. 2 V. & B. 407.' Fairbrother v. Prattent, 1 Daniel. 64. Fairbrother v. Nerot, ib. 68. n. Vide also, Earl of Carlisle v. Andrews, 2 Freem. 148. Shotbolt v. Biscow, 2 Eq. Ab. 173.

(6) Paris v. Gilham, Coop. 56.
(c) 15 Ves. 246. et vide 2 Ves. jun. 109.
(d) 4 Bro. C. C. 297. 2 Ves. jun. 138.

(e) Ibid.

Z

Interpleader. sums on account of the future payments would be

continually coming into controversy, unless they were restrained from proceeding for them; that complete relief could not be given, which was necessary to deliver the plaintiff from the vexation to which he would have been liable. Upon this principle also, was the decree in the late case of Angel v. Hadden, where the plaintiff had notice of a variety of claims, by persons among whom an entire charge upon an estate was split; and though no suit was instituted, and there was but one legal right of entry, yet a decree was made, the principle being not merely that the payment cannot be safely made, but that the party entitled to be discharged by à single payment should not be harassed by a number of suits (a).

The case of Langston v.. Boylston, before Lord Rosslyn, is another remarkable illustration of this doctrine, In that case a banker, with whom property was deposited for safe custody, refused to deliver it to the owner, who was in prison under actions brought against him, as partner in an insolvent mercantile house. He was then served with attachments by the plaintiffs in those actions, and held to bail in trover by the owner. Under these circumstances, although it was unnecessary to have come into equity, as the plaintiff would have been discharged at law on common bail, upon bringing the deposit into court, and proceedings in the action would have been stayed till the attachments were disposed of by the owner of the property in

(a) 15 Ves. 244. 16 Ves. 202. 2 Meriv. 164.

« ZurückWeiter »