after the rendition of the decree; but such execution may be executed against any co-defendants of full age.(1) The solicitor must endorse upon the execution the names of the infant defendants, and shall direct the sheriff not to execute the same against them, until the expiration of the time specified.(2) (1) 2. R. S., 455, § 54. (2) Ibid. § 55. 1. A BILL to interplead, is a bill in which the complainant Nature and object of bill, claims no right in opposition to the rights claimed by those and where it against whom it is exhibited, but prays the decree of the court lies. touching the rights of those persons for his own safety. It is where two persons claim of a third the same debt or the same duty.(1) It may be filed, though the party has not been sued at law, or has been sued by one only of the claimants, or though the claim of one is actionable at law, and of the other in equity.(2) The object of such a bill is to protect a complainant standing in the situation of a stakeholder, not knowing to whom to pay the money, or to deliver the property in his hands; and where a recovery against him by one party might not be a protection against the claim of another.(3) But a bill of interpleader should not be filed where the holder of the fund is party to a suit in this court, brought by one claimant against the other, to settle the right of the fund. He should petition the court for liberty to pay it in.(4) A bill of interpleader is strictly a bill in which the complainant claims no relief against either of the defendants, but only asks for liberty to pay the money or deliver the property to the one to whom of right it belongs, and that he may thereafter be protected against the claims of each.(5) The only de (1) Mitford, 32. Dungey v. Angove, 2 Vesey, jr., 310. (2) Richards v. Salter, 6 Johns. C. R., 445. (3) Badeau v. Rogers, 2 Paige, 209. (5) Bedell v. Hoffman, 2 Paige, 200. (4) Ibid. cree to which he is entitled is, that the bill was properly filed; that he pay the fund into court, (if not previously brought in,) and that he have his costs.(1) A bill to redeem a mortgage, where there are conflicting claims to the money, may be filed, and is in the nature of a bill of interpleader. But in such a case costs are not matter of right, but in the discretion of the court.(2) See ante, p. 84, sub. 20. The filing of bills of interpleader should not be encouraged; and they should never be brought, except in cases where the complainant can in no other way protect himself from an unjust litigation, in which he has no interest.(3) A party against whom such a double claim is made, so as to entitle him to file a bill of interpleader, is not bound to file it, so long as the course of proceeding taken by the different claimants is such as, if persevered in, will determine their respective rights as between themselves, without the intervention of the court.(4) If the effect of the injunction upon such a bill will be, not only to prevent the rights of the attaching creditors from being ascertained, but to permit some third party to intervene, and obtain a title against both, the injunction will be modified, so as to permit the parties to proceed to judgment at law.(5) The case tendered by every bill of interpleader ought to be, that the whole of the rights claimed by the defendants, may be properly determined by litigation between them, and that the plaintiffs are not under any liabilities to either of the defendants beyond those which arise from the title to the property in question. If the plaintiff has come under any personal obligation, independently of the question of property, so that either of the defendants may recover against him at law, without establishing a right to the property, no litigation between the defendants can ascertain their respective rights as against the plaintiff. The injunction, which attends a proper bill of interpleader, would therefore deprive such defendant of a part of his legal (2) Ibid. (3) Ibid. (1) Ibid. right without affording him any equivalent. And such a case would not be proper for an interpleader.(1) If the personal engagement was obtained through misrepresentation, it would afford ground for relief in equity, but not for a bill of interpleader.(2) 2 and tenant. It is familiarly said that there is no interpleader between Principal and landlord and tenant, or principal and agent; but it will be agent, landlord found that the reason for this lies deeper, than might be inferred from the statement of the rule. It is to be considered not so much an independent rule, as a necessary consequence of the principle of all interpleading. In both these cases rights and liabilities exist between the parties, independent of the title to the property, or to the debt or duty in question, and which may not depend upon the decision of the question of title.(3) Where, however, the landlord or the principal has given, subsequently to the creation of the relation, an interest in the subject matter, to a third person who makes a claim, the bill will lie.(4) Lord Cottenham, under this position, examines the cases of Nickolsen v. Knowles,(5) Cooper v. De Tastet,(6) Pearson v. Cardon,(7) and Mason v. Hamilton.(8) All these cases he shows, support the position that where such a relation exists, no bill will lie if the adverse claim is prior, but only where it is derivative. See upon the question, as between landlord and tenant, the leading case of Dungey v. Angove, 2 Vesey, jr., 304. There may, says Lord Rosslyn, 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. He instances the cases of mortgagor 19. 20. (1) Per Lord Cottenham, Crawshay v. Thornton, 2 Mylne & Craig, (2) Ibid. (3) Per Lord Chancellor, Crawshay v. Thornton, 2 Mylne & Craig, (4) Ibid. (5) 5 Mad. Rep. 47. (6) 1 Tamlyn, 177. (7) 4 Simons' Rep. 218, and on appeal, 2 Russ. & Mylne, 006. (8) 5 Simons, 19. and mortgagee, trustee and cestui que trust, a married woman with a separate estate, the rent of which has been paid to the husband and notice given to pay to her. See also Clark v. Byrne, 13 Vesey, 383. Where a landlord had brought an action on a policy of insurance, and a party with whom he had entered into an agreement to lease the premises, filed a bill to compel the application of the insurance money to the repair of the premises, a bill of interpleader by the company was held proper.(1) Where an auctioneer had received a deposite on a sale, and gave a receipt expressing that the deposite would under no circumstances be paid over to either buyer or seller without their mutual consent, and the production of the receipt, and a difficulty arose as to the title, and one of the parties sued the auctioneer at law, it was held that a bill of interpleader would lie.(2) The vice-chancellor adverted to a statute passed in England, giving the relief to the party by an application to a judge of the court of law. If a party is taxed in two different towns for the same property which is only liable to taxation in one, and where it is doubtful to which town the right to tax belongs, he may file a bill of interpleader to settle the right.(3) But if it is apparent from the bill itself, that he was properly taxed in one of the towns, the bill cannot be sustained.(4) The rule is that the complainant must show he is ignorant of the rights of the defendants, or at least that there is some doubt to which of the claimants the debt or duty belongs; so that he cannot safely pay it to one without the risk of being liable to the other.(5) If the holder of the property has parted with it, on receiving indemnity from one of the claimants, he cannot sustain a bill of interpleader.(6) (1) Paris v. Gilham, Cooper's Cases, 56. (3) Thompson v. Ebbetts, 1 Hopk. 272. (4) Mohawk and Hud. R. R. Co. v. Clute, 4 Paige, 385. (5) Ibid. (6) Bennet v. Anderson, 1 Merivale, 405. See 6 Conn. R. 421. |
