Interpleader. picion of collusion, it will direct an inquiry; and Lord Rosslyn, in a case where fraud was proved with one of the defendants, dismissed the bill with costs to the other, as between attorney and client, to be paid by the plaintiff and his solicitor; and the latter was ordered to show cause why he should not be struck off the rolls (a).

Whether injunction in interpleader can be obtained upon affidavit.

It has been laid down in two very recent cases, that an injunction to stay proceedings at law in an interpleading suit, stands upon the same principle as the common injunction; and that it cannot be obtained, as in a case of waste, upon bill filed and affidavit (b). It must be remarked, however, upon the cases in which the doctrine is so laid down, that though a search was directed to be made for precedents, yet either from the neglect of the parties, or from the urgency of the case, which required immediate decision, this direction does not appear from the report to have been complied with. The author has consulted several of the entries in the Register's book, and although in many the injunction obtained was the common injunction, yet there are not wanting instances in which the injunction was obtained on affidavit. In the case of Stevenson v. Anderson, the injunction was obtained upon affidavits, and as the defendant had appeared in time, the motion was made upon notice, and accordingly affidavits were read in opposition to it (c). In

(a) Dungey v. Angove, 2 Ves. jun. 301.

(b) Croggon v. Symons, 3 Mad. Rep. 130. Bailey v. Punard, ib. 131. n.

(c) Reg. Lib. B. 1813, fol. 668.

the case of Aldridge v. Mesner (a), the plaintiff moved Interpleader. for an injunction, though one of the defendants had actually demurred to the bill; and upon that motion the defendant who had demurred was restrained from proceeding in his action, and directed to undertake the defence of the other action; and the cause was brought to a conclusion, although that demurrer was never argued. It is remarkable also that it does not appear that the case of Langston v. Boylston was brought under the consideration of the court. That case is of importance, as containing a discussion upon the subject of reading affidavits in cases of interpleader, and the deliberate opinion of Lord Rosslyn, that they might be read against the answer, as in a case of waste. In the case before him, when they were offered upon the original motion, it was insisted for the defendants, that affidavits could only be read in cases of waste, and Lord Rosslyn directed the argument to proceed without having them read; but upon a subsequent day he observed, that upon consideration, he thought he ought to have had the affidavits read: that an interpleading bill was exactly upon the footing of an injunction to stay waste, and might be supported by specific evidence of facts (b).

obtain an in

It was laid down by Lord Thurlow, in the case of Whether the Dungey v. Angove (c) (for which he relied both plaintiff can upon the Practical Register and the Equity Cases junction Abridged), that a plaintiff can never proceed com- bringing the

(a) 6 Ves. 418.

(b) 2 Ves. jun. 109.
(c) 3 Bro. C. C. 36.

without

subject of the suit into

court.

Interpleader. pulsorily by injunction, till he has brought the sub

Plaintiff not entitled to his costs, unless he sets down

ject matter of the suit into court: this, however, it should seem would only apply to those cases where the plaintiff applies specially by motion for an injunction. There are several cases in which the common injunction had already been obtained; and the question, as to payment of the money into court, did not come into consideration, till the discussion as to the continuing the injunction upon the coming in of the answer (a). It has also been expressly laid down by Lord Hardwicke, in the case of the Earl of Thanet v. Paterson (b), that it was not necessary that the plaintiff should bring the money into court, unless the other side require it; but that it is necessary that the plaintiff should make an offer to do so by his bill. In the Exchequer it seems to be necessary in all cases that the money should first be paid into court (c).

It has been said that the plaintiff in a bill of interpleader is bound to prosecute the suit so far as to sue out subpoenas to rejoin (d). In a late case this the cause for has been carried still further, for where the plaintiffs had replied to the answers, and served subpoenas to rejoin, it was held that they could not move to have their costs paid out of the fund in court, but must set down the cause for hearing (e).

hearing.

Proceedings

at the hear

ing.

If at the hearing the question between the de

(a) Brimer v. Buchannon, cit. 3 Bro. C. C. 36. Surrey v. Waltham, ib.

(b) Barnard, Ch. Rep. 250.

(c) 1 Fowl. Ex. Pr. 260.

(d) Dungey v. Angove, cit. Harr. Ch. Pr. 46.

(e) Jones v. Gilham, Coop. 49.

fendants is not ripe for decision, the court will direct Interpleader. an action, or an issue, or a reference to the Master,

as may be best suited to the nature of the case (a). If the question is ripe for decision, a decree is made between the respective defendants, and a perpetual injunction is decreed against the defendant who is unsuccessful. A decree in a suit of interpleader has been made, though one of the defendants made default at the hearing (b); and in a late case in the Exchequer, a decree was made, though one of the defendants had not appeared to the bill, the usual process of contempt having been gone through (c).

though one fendants out of the jurisdiction.

of the de

In a case upon this subject before Lord Eldon, it Decree
was objected, that one of the defendants was out of
the jurisdiction, and therefore that a bill of inter-
pleader could not be supported: his lordship, how-
ever, declared, that such a proposition could not be
maintained, as a person out of the jurisdiction might
threaten and bring an action; that the plaintiff in a
bill of interpleader against persons within and with-
out the jurisdiction, is bound to bring them all
within the jurisdiction in a reasonable time; if he
does not, the consequence is, that the only person
within the jurisdiction must have that which is re-
presented to be the subject of competition, and the
plaintiff must be indemnified against those who are
out of the jurisdiction, when they think proper to
come within it, and sue either at law or in this court.
If the plaintiff can show that he has used all due
diligence, to bring persons out of the jurisdiction, to

(a) 16 Ves. 203. 2 Bro. C. C. 149.
(b) Hodges v. Smith, 1 Cox, 357.
(c) Fairbrother v. Prattent, 1 Dan. 64.

Interpleader. contend with those who are within it, and they will not come, the court upon that default, and their so abstaining from giving him the opportunity of relieving himself, would, if they afterwards came here and brought an action, order service on their attorney to be good service, and injoin that action for ever; not permitting those who refused the plaintiff that justice, to commit that injustice against him (a). If there is a fund in court, the plaintiff has a lien upon it, and will at the hearing be entitled to have his costs paid out of it (b); if there is no fund, costs will be given against the party who occasioned the suit (c).

Plaintiff entitled to

costs,and has a lien upon

the fund.

Costs given as between

Costs may also be given, if the court thinks prodefendants, per, between the defendants (d). between the defendants (d). The direction in that case is, that the plaintiff shall be at liberty to

(a) Stevenson v. Anderson, 2 V. & B. 411.

(6) Hacket v. Webb, Finch, 257. Aldrich v. Thompson, 2 Bro. C. C. 149. Hodges v. Smith, 1 Cox, 357.

(c) Aldridge v. Mesner, 6 Ves. 419.

(d) Cowtan v. Williams, 9 Ves. 107. Brimer v. Buchanan, cit. ib. Teasdale v. Loughnan, ib. Hodges v. Smith, sup. Thirey v. cit. 2 Cox, 281. The case of Dowson v. Hardcastle (which was reported in the first edition of Mr. Vesey's Reports, Vol. I. p. 368. but omitted in the second), has been supposed to have been to the contrary; but it appears from Mr. Cox's report, where the order is inserted, that one set of defendants were directed to pay the costs to the other. 2 Cox, 178. In Edensor v. Roberts, ib. 280. the same doctrine was recognized: both these orders, however, are contrary to the present practice. In the former case, from the circumstance of the plaintiff not being directed to take or retain his costs from the fund in dispute; in the latter, he was ordered to pay the costs to certain of the defendants, and then to have those costs, together with his own, out of the fund.