Interpleader-Claims of parties must be identical.

and the same thing; or, in other words, the claims must be identical. Thus, where an auctioneer, by direction of the owner, sells the same property to two persons successively and receives a deposit from each, he cannot, on a claim made by the owner of the property for the amount of both deposits, and a counterclaim by each for the amount of his individual deposit, compel the owner and the purchasers to interplead. Although, as between the vendees there is one question in common, viz.: who is the real purchaser of the estate, yet as against the auctioneer, their claims are for different things, viz.: the individual deposit of each. But the auctioneer may compel the owner of the property and the first purchaser to interplead, or the owner and the second purchaser; as, between these parties, the claims are identical. Hoggart v. Cutts, 1 Craig & Phill. 197.

But the

Claims for different amounts can never be identical. fact that claims are for the same amount will not, of itself, be sufficient to render them identical, as the amount may be the same and yet the debts be different. The fact that the claims are the same in amount will, however, go far to determine the question of identity. Glyn v. Duesbury, 11 Sim. 139. But the circumstances out of which the adverse claims arise should also be considered in determining their identity. Thus, a vendee who is sued by his vendor for the price of goods purchased, and by a third party for the value of the goods in trover, cannot maintain an action of interpleader, as the claims made against him are not identical. The one seeks to have the benefit of a contract, the other claims the value of a chattel, which is the subject-matter of it. Slaney v. Sidney, 14 Mees. and Wels. 800; S. C., 15 Law J. Exch. 72. See Trigg v. Hitz, 17 Abb. 436; Johnston v. Lewis, 4 Abb. N. S. 150. But where claims are for different amounts, yet are identical in other respects, the action may be maintained. Thus, where a party has been assessed in two different counties for the same personal property, he may maintain an action of interpleader against two collectors seeking to collect the tax levied under such assessment, although the amounts in each case may be different, as the claims are for the same debt or duty. Thomson v. Ebbets, 1 Hopk. 272; Redfield v. Supervisors of Genesee Co., 1 Clarke's Ch. 42; Mayor, etc., of New York v. Flagg, 6 Abb. 296; Mohawk and Hudson R. R. Co v. Clute, 4 Paige, 384.

Interpleader - Character of the property claimed.

So although the original debts may have been identical in amount, yet, where the plaintiff claims part payment as to one of the parties making a demand against him, an action of interpleader cannot be maintained. Diplock v. Hammond, 27 Eng. Law and Eq. 202. And it is an invariable rule that where the plaintiff raises any question as to the amount of the claim, which is the subject of litigation, this alone will be fatal to the right to the remedy. Ib.

These rules do not, however, require that the claims shall be identical in character, as that they shall be both legal, or both equitable, in order to entitle the party against whom the claims are made to compel the claimants to interplead. If the claims are in fact identical, it is a matter of no importance, so far as relates to the right to the remedy that one is legal and the other equitable, or that they are both legal or both equitable. Richards v. Salter, 6 Johns. Ch. 445; Yates v. Tisdale, 3 Edw. Ch. 71; Angell v. Hadden, 15 Ves. 244; Morgan v. Marsack, 2 Mer. 107; Lowndes v. Cornford, 18 Ves. 299.

The claims must not only relate to the same debt, duty or thing, but must, also, be in reality conflicting claims. Cochrane v. O' Brien, 2 J. & L. 380; S. C., 8 Ir. Eq. R. 241; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384, 392. A mere pretext of a conflicting claim, or the mere possibility that there may be two liabilities, is not sufficient to maintain an action of interpleader. Ib. f. Character of the property claimed. In order to maintain the action or to obtain the order of interpleader, there must be either some specific property, or some definite sum of money to which different parties make claim. It is essential to the right to the remedy that the property or thing claimed is definite and certain in its character. Lincoln v. Rutland & Burlington R. R. Co., 24 Vt. 639. But the rule goes no farther. Where the property in dispute is fixed and definite in its character, as shares in the capital stock of a bank, the precise value of the property is immaterial. Cady v. Potter, 55 Barb. 463.

g. Claims, how urged. In order to entitle a party to an order of interpleader under the Code, it is necessary that it shall appear that an action has been commenced against him to enforce a specified claim, and that a person not a party to the action makes a demand against him for the same debt or property. Code, 122; Patterson v. Perry, 14 How. 505; S. C., 6 Duer, 686; McKay v. Draper, 27 N. Y. (13 Smith) 256.

Interpleader-Applicant must be in possession of matter in dispute.

To entitle a party to relief under the statute it is not only necessary that he be sued, but the complaint in the action must have been served. Code, § 122; Parker v. Linnett, 2 D. P. C. 562; Harrison v. Payne, 2 Hodges, 107. And the application must be made before the service of the answer in the action. Code, § 122.

A married woman may have the order when the claim relates to her rights as against an execution creditor. Shingler v. Holt, 7 H. & N. 65.

To entitle a party to maintain the action of interpleader, however, it is not essential that an action should have been actually commenced. It is sufficient that a claim is made against him, and that he is in danger of being molested by conflicting rights. Yates v. Tisdale, 3 Edw. Ch. 71; Schuyler v. Hargous, 28 How. 245; S. C., 3 Rob. 673; Angell v. Hadden, 15 Ves. 244; Langston v. Boylston, 2 Ves. Jr. 101; Dungey v. Angove, id. 304, 310. Even a liability to be called upon, by different persons, for the same demand, gives a right to maintain the action to determine which of the parties is entitled to the fund or property which may be the subject of such demand. Duke of Bolton v. Williams, 2 Ves. Jr. 138, 152; East India Co. v. Edwards, 18 Ves. 376.

Where actions were commenced against an acceptor of a bill by two parties, each of whom claimed to be the lawful owner of it, the case was held to be a proper one for an interpleader to determine which one of them was lawfully entitled to recover on the bill. Regan v. Serle, 9 Dowl. 193.

So, where the assignee of a bankrupt factor,sued for goods sold by the bankrupt to the defendant, and a third party claimed the proceeds as having been the consignor of the goods, the defendant was allowed an order of interpleader. Johnson v. Shaw, 4 Man. & Gr. 916; 12 L. J. N. S. C. P. 112.

h. Applicant for relief must be in possession of the matter in dispute. It is also essential to the right to relief by action, or by an order of interpleader, that the party seeking relief should be in possession of the matter in dispute, and thus be able to obey any order of the court in relation to the disposition thereof. And it is not enough that similar property, or the same sum, may be in the possession of said party, which he is willing to deposit or pay subject to the direction of the court, if the identical thing in controversy has been delivered to either of the

Dilligence Action of interpleader.

claimants. Inland v. Bushell, 5 Dowl. 147; Allen v. Gilby, 3 id. 143. So where an action is brought to recover the possession of personal property, and the plaintiff therein has obtained possession thereof by proceedings in the nature of replevin, the defendant cannot compel the plaintiff to interplead with a stranger claiming the same property, if he has waived his right to a redelivery of the property, and consequently cannot deposit it in court. Vosburgh v. Huntington, 15 Abb. 254.

i. Diligence. A party who seeks relief by interpleader must use due diligence in making the application, for delay may deprive him of the remedy sought. Larabrie v. Brown, 1 D. & J. 205; Devereux v. John, 1 D. P. C. 548; Cook v. Allen, 2 id. 11; 1 C. & M. 542; 3 Tyr. 586; Dixon v. Ensell, 2 D. P. C. 621; Brockenbury v. Laurie, 3 id. 180.

Section 3. Action of interpleader.

a. Old rules still in force. The Code, as has previously been stated, has left unchanged the rules and principles governing the right to maintain the action of interpleader. Vosburgh v. Huntington, 15 Abb. 254; Sherman v. Partridge, 1 id. 256; S. C., 11 How. 154; 4 Duer, 646. It follows from this, that where this action was maintainable under the former practice, it is maintainable now; and that the cases in which the action will lie are limited to the cases in which the bill of interpleader might properly have been filed in chancery. So, whenever a party elects to bring an action of interpleader, instead of applying for an order under section 122 of the Code, the action must be governed by the practice and rules which obtained in chancery in similar cases. Washington Life Insurance Co. v. Lawrence,

28 How. 435.

b. Complaint and affidavit. In order to maintain an action of interpleader, the complaint must show (1), that two or more persons have preferred a claim against the plaintiff; (2) that they claim the same thing; (3) that the complainant has no beneficial interest in the thing claimed; and (4) that he cannot determine, without hazard to himself, to which of the two defendants the thing of right belongs. Atkinson v. Manks, 1 Cow. 691; New York & N. H. R. R. Co. v. Schuyler, 1 Abb. 417; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384; Redfield v. Supervisors of Genesee, 1 Clarke, 42. It must also show that the complainant can in no other way be protected from an oppressive or vexatious litigation in which he has no personal interest. Beck v. Stephani, 9 How.

Interpleader - Injunction - Answer or demurrer - Decree.

193; Dry Dock Methodist Episcopal Mission Church v. Carr, 2 Barb. 60; Bedell v. Hoffman, 2 Paige, 199. The complaint should contain no demand for relief against either of the defendants, further than that the plaintiff in the action of interpleader be allowed to pay the money or deliver the property to the one to whom it, of right, belongs, and that he be thereafter protected from the claims of both. Ib. Mitchell v. Hayne, 2 Sim. & Stu. 63; Schuyler v. Hargous, 3 Rob. 673; S. C., 28 How. 245; Atkinson v. Manks, 1 Cow. 691.

The court will also require the plaintiff to accompany his complaint with an affidavit that there is no collusion between him and any of the parties, and will also require him to bring the money or thing claimed into court. Farley v. Blood, 30 N. H. (10 Foster) 354; Shaw v. Coster, 8 Paige, 339; Bignold v. Audland, 11 Sim. 23. No order of injunction will issue until the money or property has been so deposited. Shaw v. Chester, 2 Edw. Ch. 405; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384.

c. Injunction. Whenever it appears that a proper case for an action of interpleader has been presented in the complaint, the court will, almost as of course, issue an injunction restraining the claimants from further proceedings to enforce their respective claims until further order. Crawford v. Fisher, 10 Sim. 479; Moore v. Usher, 7 id. 383. This injunction may be obtained on an ex parte application, unsupported by affidavits, if the complaint is duly verified. Walbranke v. Sparks, 1 Sim. 385. See Jew v. Wood, 1 Craig & Ph. 185. On the hearing of the cause, if the party establishes his right to a decree of interpleader, the court will make this preliminary injunction perpetual. See Richards v. Salter, 6 Johns. Ch. 445.

d. Answer or demurrer. The defendants in the action of interpleader have twenty days from the service of the summons and complaint in which to answer or demur as in other actions. Washington Life Ins. Co. v. Lawrence, 28 How. 435.

e. Decree. The issues raised by a demurrer or an answer will be disposed of in the ordinary manner of disposing of issues; and, if the plaintiff is successful, he can obtain his relief by the decree made thereon. Washington Life Insurance Co. v. Law rence, 28 How. 435.

f. On default. An order granting the relief sought may be taken by default, but not until after all of the defendants have failed either to demur or answer, within the time allowed by the