the name of the banker, yet the court held that he Interpleader. was entitled to relief upon bill of interpleader. Lord Rosslyn observed, that this was precisely the case of an interpleading bill. "A party claiming no right in the subject, is doubly vexed by having two legal processes in the names of different persons going on against him at the same time. He comes upon the most obvious equity to insist that those persons, claiming that to which he makes no claim, should settle the contest among themselves, and not with him. It may be said in all cases of interpleader, as it has been in this case, stand the action. If A. proceeds first, and you have a good defence against him, that puts an end to his claim; if not, that is a defence against the claim of B. This, however," his Lordship added, "was precisely the situation in which the plaintiffs ought not to be placed (a). Upon these authorities and principles a doubt Whether, may be suggested as to the correctness of the doc where there are adverse claims, one of them under and (a) In a prior case, which nearly resembled Langston v. Boyls- the other paton, but where, from the circumstances, a bill of interpleader ramount to a would not lie, the court refused to interpose. A commission of bill of lading, bankrupt had issued against a firm, but was not proceeded in; but the captain may file a bill was renewed, and still remained unexecuted. The firm had a of interlarge sum of money in the hands of their bankers, who having pleader. notice of the commission refused to pay it; an action was accordingly brought against them, upon which a motion was made for an injunction upon paying the money into court, and it was contended that as no assignees were chosen under the commission, there was no person against whom a bill of interpleader could be filed, and they claimed protection as stakeholders; the court, however, said that the plaintiffs would be safe in paying the money under a verdict at law, and therefore that there was no reason for its interference. Fuller v. Gibson, 2 Cox, 24. Interpleader. trine contained in a recent decision; especially as the doubt has received confirmation, from the circumstance of the learned judge, who pronounced it, having, upon reconsideration, altered his first opinion (a). In that case, upon an interpleading bill by the captain of a ship against the consignee and a person claiming paramount to the bill of lading, an injunction was refused, the court considering the captain protected by a suit already instituted by the latter defendant; and it was added, that although a captain might file a bill of interpleader where parties claimed adversely under the bill of lading, yet that it was doubtful whether a captain could in any case file a bill of interpleader where the adverse claims were not under the bill of lading, but paramount to it; as delivering according to the bill of lading would fully justify the captain, and those who alleged an equity paramount to the bill of lading and against the consignor, should assert it by a suit of their own (b). Tenant not It is laid down in general terms by Lord Hardpermitted to file a bill of wicke (c), and he has been followed by Lord Rossinterpleader lyn, that an injunction cannot be obtained upon a bill against his landlord and of interpleader to stay proceedings in ejectment (d). a stranger. This proposition, however, must be confined to those cases in which a tenant brings a bill to compel his landlord, and a stranger claiming adversely to (a) Morley v. Thompson, 29th July, 1819. 3 Mad. Rep. Index, Secus where the him, to interplead (a). The reason of this rule is Interpleader. stated in the following clear manner by Lord Rosslyn; a bill of interpleader is where two persons claim of a third the same debt or the same duty. In the case of another person claiming against the title of his landlord, it is clear, unless he derives under the title of the landlord, he cannot claim the same debt. The rent due upon the demise, is a different demand, from that which some other person may have, upon the occupation of the premises (b). There may however, as his Lordship proceeded to observe, be a variety of cases in which the tenant, not disputing the title of the landlord, but affirming that title, the tenure and the contract by which the rent is payable, but where it is uncertain to whom it is to be paid, may file a bill of interpleader; as where the same rent is claimed by two persons who are in privity of tenure and privity of contract; as in the case of mortgagor and mortgagee, trustee, and cestui que trust; or where the estate is settled to the use of a married woman, of which the tenant has notice, and the husband has been in receipt of the rent, and differences arise between them and (a) Dungey v. Angove, 3 Bro. C. C. 36. 2 Ves. jun. 304. Smith v. Target, 2 Anst. 529. Johnson v. Atkinson, 3 Anst. 798. overruling Surrey v. Lord Waltham, 2 Anst. 531. In the case of Alnete v. Bettam, Cary, 65. which is perhaps the oldest case in print upon this subject, was also one in which a tenant upon paying his rent into court, obtained an injunction against two persons suing for the inheritance, one of whom had granted the lease. (b) 2 Ves. jun. 310. This was an objection to the bill in the case of Woolaston v. Wright, 3 Anst. 801. the object of which was to compel two rectors to interplead, who claimed different things, the one tithes in kind, the other a modus. rent is claimed by persons in privity of tenure and contract. Interpleader. she claims the rent (a). So where the question arises upon some act of the landlord subsequent to the lease, a tenant may file a bill of interpleader: as where the tenant had claims brought against him by persons having annuities granted by the landlord and subsequent to the lease (b). In another case an interpleading bill was supported by a lessee of tithes against the vicar (the lessor), and the assignees under an insolvent act, of which he had taken the benefit, subsequent to the lease (c). In another the landlord had assigned his interest to a person, to whom the tenant attorned, and afterwards both were alleged to have conveyed the estate to trustees, but contending claims were made by them upon the tenant, who was holden entitled to a bill of interpleader (d). It is no objection to a bill of interpleader, that the demand of one of the defendants is by virtue of an alleged legal, and the other of an alleged equitable right (e). But a person cannot maintain this bill who is obliged so to state his case, that, as to some of the defendants, he is a wrong-doer; accordingly the sheriff, who has levied upon the goods alleged to be in settlement, cannot file a bill of interpleader (ƒ). (a) 2 Ves. jun. 312. (b) Lord Thomond's case, cit. 9 Ves. 107. (c) Cowtan v. Williams, 9 Ves. 107. (d) Clarke v. Byne, 13 Ves. 383. vide the case of the East India Company v. Edwards, 18 Ves. 376. where one defendant had by his act given a colour of title to another person, and a bill of interpleader was held to lie. (e) Morgan v. Marsack, 2 Meriv. 111. Nor if the plaintiff has parted with the possession of Interpleader. the goods can this bill be sustained, upon an undertaking to pay over the value of them to the party who shall be found entitled to them (a). upon motion Nor can the benefit of this species of suit be ob- Benefit of interpleader tained by motion in a cause to which the stake- cannot be holder is a defendant; accordingly where money in obtained the funds was the subject of a suit, to which the without bill. Bank was a defendant, Lord Thurlow refused, upon the application of the Bank, to make any order upon the litigating parties to restrain them from proceeding at law against the Bank, to compel a transfer; he said they must apply in the shape of plaintiffs (b). 1 necessary There must also be an affidavit by the plaintiff, Affidavit either annexed to the bill, or filed along with it (for that there is want of which the bill will be demurrable), asserting no collusion. that the plaintiff does not exhibit the bill by fraud or collusion with either of the defendants, but spon-. taneously (c). He need not, however, swear that the bill was filed at his own expense, or that it was filed without the knowledge of either of the defendants (d). The court will not determine the affidavit to be false upon a counter-affidavit (e); but if there is a sus (a) Burnett v. Anderson, 1 Meriv. 405. (b) Birch v. Corbin, 1 Cox, 144. See a prior application by other defendants in this cause. 1 Brb. C. C. 571. (c) Redes. Tr. 116. Errington v. Attorney General, Bunb. 303. where there is an absurd quære of the reporter, which shows that he thought the affidavit was only necessary where the Attorney General was a party. (d) Metcalf v. Harvey, 1 Ves. 248. Stevenson v. Anderson, 2 V. & B. 410. (e) 2 Ves. & Bea. 410. |