quod intelligebat alienum esse. Just. Inst. Lib. 2, tit. 1, § 30, 32; ante, § 799 b; Vin. Com. ad Inst. Lib. 2, tit. 1, § 30, n. 3, 4, p. 194, 195. It is a grave mistake, sometimes made, that the Roman law merely confined its equity or remedial justice, on this subject, to a mere reduction from the amount of the rents and profits of the land. See Green v. Biddle, 8 Wheat. 79, 80. The general doctrine is fully expounded and supported in the Digest, where it is applied, not to all expenditures upon the estate, but to such expenditures only as have enhanced the value of the estate (quatenus pretiosior res facta est). Dig. Lib. 20, tit. 1, 1.29, § 2; Dig. Lib. 6, tit. 1, 1. 65; id. 1. 38; Pothier, Pand. Lib. 6, tit. 1, n. 43, 44, 45, 46, 48, and beyond what he has been reimbursed by the rents and profits. Dig. Lib. 6, tit. 1, 1. 48. The like principle has been adopted into the law of the modern nations, which have derived their jurisprudence from the Roman law; and it is especially recognized in France, and enforced by Pothier, with his accustomed strong sense of equity, and general justice, and urgent reasoning. Pothier de la Propriété, n. 343 to 353; Code Civil of France, art. 552 to 555. Indeed, some jurists, and among them Cujacius, insist, contrary to the Roman law, that even a malâ fide possessor ought to have an allowance of all expenses which have enhanced the value of the estate, so far as the increased value exists. Pothier de la Propriété, n. 350; Vinn. ad Inst. Lib. 2, tit. 1, 1. 30, n. 4, p. 195. The law of Scotland has allowed the like recompense to bonâ fide possessors, making valuable and permanent improvements; and some of the jurists of that country have allowed the benefit to malá fide possessors to a limited extent. Bell, Grotius, Comm. on Law of Scotland, p. 139, § 538; Ersk. Inst. B. 3, tit. 1, § 11; 1 Stair, Inst B. 1, tit. 8, § 6. The law of Spain affords the like protection and recompense to bonâ fide possessors, as founded in natural justice and equity. 1 Mor. & Carl. Partid. B. 3, tit. 28, 1. 41, p. 357, 358; Asa & Manuel, Inst. of Laws of Spain, 102. Grotius, Puffendorf, and Rutherforth, all affirm the same doctrine, as founded in the truest principles ex æquo et bono. B. 2, ch. 10, § 1, 2, 3; Puffend. Law of Nat. & Nat. B. 4, ch. 7, § 61; Rutherf. Inst. B. 1, ch. 9, § 4, p. 7. There is still another broad principle of the Roman law, which is applicable to the present case. It is that where a bona fide possessor or purchaser of real estate pays money to discharge any existing encumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him. Dig. Lib. 6, tit. 1, 1.65; Pothier, Pand. Lib. 6, tit. 1, 1. 43; Pothier de la Propriété, n. 343." See also s. c. 2 Story, 605, where the doctrine was again affirmed and acted upon by the court." [Where the vendor evicts the vendee who has been in possession under a parol contract of sale, it has been held, that the vendee may recover the value of the improvements in assumpsit. See Miller v. Tabie, 41 N. H. 84. And that where specific performance of a parol contract of sale is refused on ground of the statute, allowance may be made in same suit for improvements, see Winton v. Fort, 5 Jones (N. C.), Eq. 251. See Patterson v. Yeaton, 47 Me. 308. Where vendee delays to enforce his right, he may be compelled to pay for improvements made by vendor. Davidson v. Barclay, 63 Penn. St. 406.] CHAPTER XX. INTERPLEADER. 1* § 800. Interpleader in equity. § 801, 802. This proceeding existed at law, in cases of a joint bailment. § 803. And in cases of finding and some others. § 804, 805. This was only in actions of detinue and is now obsolete. § 806. The equitable remedy follows the analogy of that at law. § 807. Equity jurisdiction rests upon defect of legal remedy. § 808. It is enough if the party is exposed to conflicting claims. § 809. Plaintiff must make affidavit against collusion. § 810. Case where court ordered an account also. § 811. Cases of annuitants and tenants. § 812. Claims must be in privity with each other. § 813. But equity maintains more extensive jurisdiction than law. § 813 a. Liability to taxation in different towns. § 813 b, 813 c. Claims under policies of insurance, attachments, &c. § 814. Such bills brought by mere stake-holders. § 815-817. Independent titles cannot be settled by interpleader. § 817 a. The plaintiff may be an agent of one party. § 817 b. But in such case the other parties must claim under the title of his prin cipal. § 818. Public agents may interplead independent claimants. § 819, 820. But a private holder cannot interplead independent titles. § 820 a. Case illustrative of the subject. § 820 b. As applicable to sheriff seizing goods. § 821. The bill must show two claims standing equal as to plaintiff. § 822. The case is disposed of in the court of equity. § 823. English statute on the subject. § 824. Bills in the nature of interpleader, more extensive remedy. § 824 a. Summary of recent decisions upon the subject.] § 800. WITH these remarks on the jurisdiction of courts of equity, as to specific performance, and compensation and damages, we may dismiss the subject and proceed to another head of concurrent equitable jurisdiction, arising principally from the peculiar remedies administered therein; and that is, INTERPLEADER. A learned author has treated this, and one other branch of equity jurisprudence (that of interference in cases of irreparable mischief and injury), as not strictly belonging either to the concurrent, or the exclusive, or the auxiliary jurisdiction of courts of equity. Perhaps, in strictness, this may be correct, but it more nearly falls within the former than within either of the others.1 1 Cooper, Eq. Pl. Introd. p. 35. § 801. The remedy by interpleader was not unknown to the common law; but it had a very narrow range of purpose and application. The interpleader at law was where there was a joint bailment by both claimants.1 It was a common practice, in the early times of the English law, for parties, by joint agreement, to deposit title-deeds, and other deed and things, in the hands of third persons, to await the performance of covenants, or the doing of some other act, upon which they were to be redelivered to one or the other of the parties. It often happened, under such circumstances, that questions subsequently arose, whether the act had been properly performed, or the terms strictly complied with; and if, when either party supposed the crisis, on which the deed or thing was demandable, to have arrived, any dispute existed, as to the right, or as to the fact, an action of detinue (the appropriate action for such a case) became inevitable. Now, by the common law, in such a case, the depositary might, if such an action was brought against him, plead for his protection the fact of such delivery or bailment upon certain conditions, and his willingness to deliver the property to the party entitled to it, and his ignorance whether the condition were performed or not; and thereupon he might pray, that a process of garnishment (that is a process of monition or notice) might issue to compel the other depositor to appear and become a defendant in his stead. was properly called the process of garnishment.3 This § 802. The process of interpleader was very nearly allied to that of garnishment; and it arose, when both of the parties, who concurred in a joint bailment, brought several actions of detinue against the depositary, under like circumstances, for a redelivery of the thing deposited. The depositary might then plead the facts of the case, and pray that the plaintiffs in the several actions might interplead with each other. This was properly the process of interpleader. The proceeding seems highly reasonable in itself, to prevent the depositary from being harassed by suits in which he had no interest. § 803. The same process was also applied to cases where the thing in controversy came to the possession of the depositary by 1 Crawshay v. Thornton, 2 Mylne & Craig, 1, 21. 43 Reeves, Hist. of the English Law, ch. 23, p. 250 to 254; Mitford, Eq. Pl. by 2 3 Reeves, Hist. of the English Law, Jeremy, p. 141, 142; Crawshay v. Thorn ch. 23, p. 448 to 455.. ton, 2 Mylne & Craig, 1. * Id. p. 448 to 450. finding, and he was sued in detinue by different persons, each claiming to be the owner in severalty. And it seems also to have been applied to cases of a bailment by A., to the depositary to rebail to B.; where both A. and B. sued the depositary in detinue.2 But if there was no privity between the parties, but each plaintiff counted upon a several independent bailment against the depositary, there, it was said, the plaintiffs were not compellable to interplead, for it was the depositary's own folly, and he must abide by it.3 § 804. The remedy, however, such as it was, was principally confined to actions of detinue, although it was applied to a few other cases, such as writs of quare impedit, and writs of right of ward. But it was not allowed in any personal action except detinue; and then only, as we have seen, when it was founded either in privity of contract, or upon a finding. § 805. From this description of the process of interpleader at the common law, it is obvious that it could afford a very imperfect remedy in a great variety of cases. Indeed, as the action of detinue has, in modern times, fallen much into disuse, and the action of trover has been substituted in its stead (in which interpleader did not lie at the common law), little or no practical advantage could be derived from it in modern times. The only remedy, therefore, now resorted to (as we are informed from very high authority), for the relief of a person sued, or in danger of being sued. by several claimants of the same property, is that of filing a bill to compel them, by the authority of a court of equity, to interplead, either at law or in equity.5 § 806. It is observable, that the jurisdiction of courts of equity, to compel an interpleader, follows, to some extent, the analogies of 13 Reeves, Hist. of the Eng. Law, ch. 23, p. 448 to 455; Mitf. Eq. Pl. by Jeremy, p. 141, 142. made to Parliament, and printed by the order of the House of Commons, in March, 1830 (p. 24), for further informa 2 3 Reeves, Hist. of the English Law, tion on this subject. Mr. Reeves has, in ch. 23, p. 448, 452. 3 3 Reeves, Hist. of the English Law, ch. 23, p. 453, 454. See Rich v. Aldred, 6 Mod. 216; Story on Bailments, § 111, 112. 4 Cooper, Eq. Pl. 47, 48, 49; Mitf. Eq. Pl. by Jeremy, p. 48, and note H.; id. 141, 142. 5 The reader is referred to the able report of the common-law commissioners his History of the English Law (Vol. III. p. 448 to 455), brought together some of the cases of difficulty in the proceeding of interpleader at the common law. They abundantly show the inadequacy of the remedy. Mr. Eden's valuable Treatise on Injunctions contains a head of interpleader, which I have consulted with great advantage, and have freely used. Eden on Injunct. p. 335 to 347. the law. It is properly applied to cases where two or more persons severally claim the same thing under different titles, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He, therefore, applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits, which are, or possibly may be, instituted against him. [And, generally 1 See Metcalf v. Hervey, 1 Ves. 219; Mitford, Eq. Pl. by Jeremy, 141, 142; Cooper, Eq. Pl. Introd. 35, 36. Lord Redesdale, in his Treatise on Equity Pleadings (edition by Jeremy, p. 141, 142), gives the following description of equity jurisdiction on this subject: "It has been mentioned," says he, "that where two or more persons claim the same thing by different titles, and another person is in danger of injury from ignorance of the real title to the subject in dispute, courts of equity will assume a jurisdiction to protect him; and that the bill exhibited for this purpose is termed a bill of interpleader, the object of it being to compel the claimants to interplead, so that the court may adjudge to whom the property belongs, and the plaintiff may be indemnified. The principles upon which the courts of equity proceed in these cases are similar to those by which the courts of law are guided in the case of bailment; the courts of law compelling interpleader between persons claiming property, for the indemnity of a third person in whose hands the property is, in certain cases only; as where the property has been bailed to the third person by both claimants, or by those under whom both make title; or where the property came to the hands of the third person by accident; and the courts of equity extending the remedy to all cases, to which, in conscience, it ought to extend, whether any suit has been commenced by any claimant, or only a claim made." In Pearson v. Cardon, 2 Russ. & Mylne, 613, Lord Brougham said: "In looking at the rules of interpleader at law, you discover the principles that govern this court; because I hold it to be strictly a concurrent jurisdiction, and that you can have no interpleader here, if, upon principle, you could not have it at law." It is not very clear, what is the precise extent to which this general remark was intended to reach. With reference to the case before his lordship, it was perfectly accurate. But there certainly are cases in which an interpleader will not lie at law, but in which, nevertheless, it will lie in equity. Indeed, if there be in the case a clear right of interpleader at law, that would seem to put an end to the jurisdiction in equity, which comes in aid of the party only when there is no remedy at law, or the remedy is inadequate. 2 See Bell v. Hunt, 3 Barb. Ch. 391; Strange v. Bell, 11 Geo. 103. 8 Mitf. Eq. Pl. by Jeremy, 48, 49; 1 Eq. Abr. 80, pl. 1, in marg.; Atkinson v. Manks, 1 Cowen, 691, 703; Eden on Injunctions, ch. 16, p. 335 to 343; Moore v. Usher, 7 Sim. 383; Badeau v. Rogers, 2 Paige, 209; Mohawk & Hudson Railroad Co. v. Clute, 4 Paige, 384, 392; Richards v. Salter, 6 Johns. Ch. 445. In Glyn v. Duesbury (11 Simons, 147), the ViceChancellor, Sir L. Shadwell, said: “In the case of Crawshay v. Thornton, the Lord Chancellor, speaking of the law of interpleader, uses this language: 'In equity, it is defined to be, where two or more persons claim the same debt or duty.' It is obvious, that there may be a case of interpleader, where no debt or |