§ 286, a. The same principle has been supposed to justify the uniting in one Bill for discovery and relief, or for discovery merely, of distinct underwriters, upon the same policy or upon different policies, as plaintiffs, upon the ground of a common fraud, which vitiated all the policies, and furnished a good ground of defence at law, as well as a good ground to cancel all the policies, if it was fully established in proof; for, under such circumstances (it is said), they have a common interest.

§ 287. In the next place, a Bill may be objectionable for the opposite fault to that of multifariousness, that is to say, for an undue divisibility or splitting up of a single cause of action, and thus multiplying subjects of litigation. Courts of Equity (as we have seen) discourage, in various forms, the promotion of unreasonable litigation ; and, on this ground, for the purpose of preventing a multiplicity of suits, they will not permit a Bill to be brought for a part of a matter only, where the whole is the proper subject of one suit. Thus, for example, they will not permit a party to bring a Bill for a part of one entire account; but will compel him to unite the whole in one suit; for, otherwise, he might split it up into various suits, and promote the most oppressive litigation. Upon a ground somewhat analogous, if an ancestor has made two mortgages to the same person, the heir will not be allowed to redeem one without the other ; for, in such

1 Kensington v. White, 3 Price, R. 164; Mills v. Campbell, 2 Younge & Coll. 389, 396, 397. See Ante, $ 161 and note, 230, 278 and note ; Post, $ 537 and note, 537, a. See also Campbell v. Mackay, 1 Mylne & Craig, 624, 625.

2 Cooper, Eq. Pl. 184, 185; Mitf. Eq. Pl. by Jeremy, 183.

3 Cooper, Eq. Pl. 184, 185; Purefoy v. Purefoy, 1 Vern. 29; Mitf. Eq. Pl. by Jeremy, 183.

a case, the Equity of the heir, like that of the ancestor, is to redeem the whole, or none.

$288. In the next place, where the sole foundation of the jurisdiction in Equity is the want of a discovery, and, as incident thereto, relief is consequent upon that discovery, care must be taken so to frame the Bill and accompanying affidavit, as to bring it clearly within the admitted doctrine and practice of the Court. Thus, a Bill, seeking a discovery of deeds or writings, sometimes prays relief, founded on the deeds or writings, of which the discovery is sought. If the relief so prayed be such, as might be obtained at law, if the deeds or writings were in the custody of the plaintiff, he must annex to his Bill an affidavit, that they are not in his custody or power, and that he knows not, where they are, unless they are in the hands of the defendant. But a Bill for a discovery merely, or which only prays the delivery of deeds or writings, or equitable relief, grounded upon them, does not require such an affidavit.2

$ 289. In the next place, the matters of the Bill should be such, as clearly to entitle the party to all the discovery, which he seeks in aid of his prayer for relief; for, if the discovery is not material, the Bill will, upon this point, be open to demurrer. Thus, where a Bill, filed by a mortgagor against a mortgagee to redeem, sought a discovery, whether the mortgagee was a trustee, a demurrer to the discovery was allowed; for, as no trust was declared upon the mortgage, it was not

1 Purefoy v. Purefoy, 1 Vern. 29; Shuttleworth v. Laycock, 1 Vern. 215; Margrave v. Le Hooke, 2 Vern. 207; Coleman o. Winch, 1 P. Will. 245; Willie v. Lugg, 2 Eden, R. 78, 80; 2 Story on Equity Jurisp. $ 1023, note (1); Ex parte Carter, Ambler, R. 733 ; Ireson v. Denn, 2 Cox, R. 425 ; Jones 0. Smith, 2 Ves. jr. 376.

2 Mitf. Eq. Pl. by Jeremy, 54; Cooper, Eq. Pl. 61.

material to the relief prayed, whether there was any trust reposed in the mortgagee, or not.

§ 290. In concluding these brief remarks upon some of the more important rules, applicable to the structure of the common original Bills for relief, it may be added, that, in all cases, where the interference of a Court of Equity is sought, the plaintiff should not only clearly show his title, and right to demand the assistance of the Court in his favor ; but also, that the case is one, of which the Court has jurisdiction, and to which it ought to apply its remedial justice. If this is not done, the suit is fatally defective and the Bill must fail.2

1 Mitf. Eq. Pl. by Jeremy, 192 ; Harvey v. Morris, Rep. Temp. Finch, 214; 2 Story on Eq. Jurisp. § 1497.

2 See Mitf. Eq. Pl. by Jeremy, 110, 125, 133, 141, 154, 155, 163 ; Ante, ý 10, 241; Cooper, Eq. Pl. 179; Bedell v. Hoffman, 2 Paige, R. 199; Barton's Suit in Eq. 45, 46.

CHAPTER VI.

BILLS OF INTERPLEADER AND CERTIORARI.

§ 291. THERE are, however, two other sorts of original Bills for relief (as has been already stated), namely, Bills of Interpleader, and Bills of Certiorari, upon the structure of which it may be proper to say a few words. And, first, as to a Bill of Interpleader. It is ordinarily exhibited, where two or more persons claim the same debt, or duty, or other thing, from the plaintiff, by different or separate interests; and he, not knowing to which of the claimants he ought of right to render the same debt, duty, or other thing, fears, that he may suffer injury from their conflicting claims, and therefore he prays, that they may be compelled to interplead, and state their several claims, so that the Court may adjudge, to whom the same debt, duty, or other thing, belongs. As every such Bill is founded

Mitf. Eq. Pl. by Jeremy, 48, 49, 141; Cooper, Eq. Pl. 45, 56 ; Crawshay o. Thornton, 7 Sim. R. 391 ; S. C. 2 Mylne & Craig, 1, 21; 1 Eq. Abridg. 80, I, marg..; 2 Story on Equity Jurisp. 9 806 – 824 ; 1 Mont. Eq. Pl. 232. See East India Company v. Campion, 11 Bligh, R. 181, 182; Atkinson v. Manks, 1 Cowen, R. 691. In Hoggart v. Cutts, 1 Craig & Phill. 204, Lord Cottenham said ; “ The definition of interpleader is not, and cannot, now, be disputed. It is where the plaintiff says, I have a fund in my possession, in which I claim no personal interest, and to which you, the defendants, set up conflicting claims; pay me my costs, and I will bring the fund into Court, and you shall contest it between yourselves. The case must be one, in which the fund is matter of contest between two parties, and in which the litigation between those parties will decide all their respective rights with respect to the fund.” See also 2 Story on Eq. Jurisp. S 817, b, where the opinion of Lord Cottenham in Crawshay v. Thornton, 2 Mylne & Craig, 119, is cited at some length in the note. See also Bignold v. Audland, 11 Sim. R. 23, 24 ; Glyn . Duesbury, 11 Sim. R. 139, 147, 148; 2 Story on Eq. Jurisp. EQ. PL.

41

upon the admitted want of interest in the plaintiff, and is, at the same time, susceptible of being used collusively to give an undue advantage to one of the contending parties, two things are required as precauțions to prevent any abuse of the proceeding. In the first place, the plaintiff must annex an affidavit, that there is no collusion between him and any of the parties; in the next place, if there is any money due, he must bring it into Court, or, at least, offer to do so by his Bill. If he does not do so, it is in strictness a good ground of demurrer.

§ 292. In the next place, in a Bill of Interpleader, it is necessary, that the plaintiff should state his own rights, and thereby negative any interest in the thing in controversy; and he should also state the several claims of the opposing parties. If the Bill does not show, that each of the defendants, whom it seeks to compel to interplead, claims a right, both of the defendants may take the objection by demurrer; one, because the Bill shows no claim of right in him; the other, because the Bill, showing no right in the co

§ 806, note; Shaw v. Coster, 8 Paige, R. 339. The subject of interpleader generally is fully treated in 2 Story on Eq. Jurisp. 800 - 825.

1 Mitf. Eq. Pl. by Jeremy, 49, 143; Cooper, Eq. Pl. 49, 50; Barton's Suit in Eq. 47, note (1); 2 Story on Eq. Jurisp. $ 809 ; Post, 297.

2 Ibid; Metcalf v. Hervey, 1 Ves. 248; Hyde v. Warren, 19 Ves. 321, 323 ; Dungey v. Angove, 3 Bro. Ch. R. 36.

3 Mitf. Eq. Pl. by Jeremy, 49, 141, 142; 1 Mont. Eq. Pl. 232, 233. In Dungey v. Angove, 2 Ves. jr. 311, Lord Loughborough is reported to have said ; "The Bill is singular; for it suggests a case. An interpleading Bill never does that." It is not very clear, what his Lordship meant by this statement. In one sense, every Bill of Interpleader must suggest a case, that is, it must suggest a case which justifies the interposition of the Court. What his Lordship probably meant was, that it never suggests the whole case of the defendants, or the validity of their respective titles, by a full display and comparison of them, calling upon the Court to interpose and decide upon such statement of them. See Mohawk & Hudson Railroad Company v. Clute, 4 Paige, 384, 391.