Emerson v. Hogg.

donment by showing acts prosecuting or asserting his discovery.

3. It is objected that the plaintiff is not entitled to damages for infringements committed anterior to the re-recording of his patent, and that the jury were not correctly instructed on that subject. The charge imports a general liability of the defendants, and no intimation is given that their liability ought to be so qualified. This point was not raised at the trial. The Court was not prayed to instruct the jury otherwise, nor was a specific exception taken to the direction as given. If the defendants wished more definite instructions, or desired that those given should be qualified, they should have called the matter to the notice of the Court, that the mistake, if one, might have been then rectified. No advantage can now be taken; if an error has been so committed. (Smith v. Carrington, 4 Cranch, 62; Carver v. Jackson, 4 Peters, 1; Norman v. Wells, 17 Wend. 136; Stafford v. Bacon, 1 IIill, 532, 537.)

A new trial must be granted, the costs to abide the event.*

The case was again tried before NELSON, J., in May, 1847, when the plaintiff again had a verdict. The defendants, after judgment, carried the case to the Supreme Court, where it is reported as Hogg v. Emerson in 6 Howard, 437, and in 11 Howard, 587, and where the decision of this Court as to the validity of the patent was sustained.

The City Bank of New York v. Skelton.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE CITY BANK OF NEW YORK

vs.

ELIZABETH SKELTON AND OTHERS. IN EQUITY.

Upon the general principles of Equity jurisprudence, a bank may, in a proper case, have relief by bill of interpleader against separate and adversary parties who claim title to moneys therein deposited.

This Court has no power to restrain or interfere with a suit prosecuted and pending in a State Court, by enjoining the further prosecution of such suit. But this Court, in executing a jurisdiction vested in it, may, in a case of which it has cognizance, act upon parties who are suitors in a State Court in relation to the same subject-matter, so far at least as to compel their submission to such judgment as this Court may render in the case.

Where funds were deposited in a bank, and afterward S., claiming the funds as his property, commenced a suit for their recovery in a State Court against the bank and Y., the depositor of the funds, and, while that suit was pending, Y. commenced two suits in this Court against the bank, to recover the funds and damages for their detention, the bank having no interest in the funds: Held, on a bill filed in this Court by the bank against S. and Y., that although this Court would not decree an interpleader in the case, or enjoin the suit in the State Court, yet it would enjoin the prosecution by Y. of his suits in this Court, until the final decision of the suit in the State Court.

Held, also, that this Court would give the parties the option to consent by stipulation to interplead in this Court on the subject-matter, and, in case they did so, would allow the bank to pay the funds into Court, first dedueting such costs and expenses as the Court should allow.

(Before BETTS, J., Southern District of New York, March 2d, 1846.)

THIS was a bill in equity filed in December, 1845, by the plaintiffs, a banking corporation in the city of New York, against Elizabeth Skelton and Mary Ann Frazer, citizens of the West Coast of Africa, and Philip R. Yonge, a citizen and resident of Georgia. The facts were these: At the instance of Lot Clark, the plaintiffs, on the 5th of July, 1844, agreed to receive on deposit for safe keeping, for a short time, and until some conflicting claims in respect to them should be adjusted, certain bonds and moneys and a promissory note. Accordingly, the said Clark, Samuel L. Burritt

The City Bank of New York v. Skelton.

and Erastus C. Benedict, (the latter acting, as was alleged, on behalf of the defendant Yonge,) deposited with the plaintiffs sixteen six per cent. bonds of the United States, amounting in the whole to $52,000, with coupons attached for the payment of interest, and a promissory note of one Gibbs for $1,000, and $2,490 in cash, said to be interest previously collected on the bonds. The plaintiff's teller, who received the deposit, delivered to Benedict, with the knowledge and concurrence of Clark and Burritt, a bank book, commonly called a dealer's book, containing this entry: "City Bank, New York, in ac. with Philip R. Yonge. Bonds deposited for collection of the interest alone, no part of the said deposit, principal or interest, to be withdrawn before the first day of September next, unless Samuel L. Burritt, of E. Florida, shall in writing request said Yonge or his attorney to withdraw the same, or some portion thereof;" and then the particulars of the deposit were stated. About the 1st of August, 1844, three of the bonds, for $3,000 each, and the note of Gibbs, were withdrawn from the bank pursuant to the above condition; and the bank subsequently received, for interest on the remaining thirteen bonds, $2,580 in cash. The bill alleged that the plaintiffs continued to hold the said assets under such deposit, without making any claim to any part of them, and had always been and were ready and desirous to deliver the same to whosoever might be entitled to them.

In August, 1844, the defendants Skelton and Frazer, by the said Clark as their solicitor, filed a bill in the Court of Chancery of the State of New York, against the plaintiffs and the defendant Yonge, claiming the said assets and funds as their property, as legatees and heirs at law of John Frazer, deceased, representing that the said assets belonged to and were derived solely from his estate, of which the defendant Yonge was one of the executors, and that the executors had received other and sufficient assets to satisfy all the debts and specific legacies of the estate, and setting forth various other facts to show that the assets so deposited belonged to them and ought not to be paid over to the defendant Yonge, and

The City Bank of New York v. Skelton.

praying an injunction against the plaintiffs and Yonge, and other appropriate relief. An injunction was issued by the State Court, on the bill, and served on the plaintiffs, restraining them from parting with the bonds and money. They appeared in the suit and filed their answer in January, 1845, disclaiming all title to or interest in the assets, and offering to pay over the same as the Court might direct. Yonge also appeared in that suit and answered the bill. The injunction was subsequently dissolved by the Chancellor, leaving the subject-matter of the suit to be prosecuted between the parties as they might be advised; and the suit was still pending, undetermined, when this bill was filed.

On the 3d of November, 1845, after the dissolution of the injunction, a notice in writing was served on the plaintiffs on behalf of the said heirs, to the effect that the said assets belonged to the said heirs, and that, if the plaintiffs should deliver them to Yonge, they would do so at their peril.

On the 25th of November, 1845, Yonge commenced two suits at law in this Court against the plaintiffs, one in trover and the other in assumpsit. In the former, he sought to recover the value of the said remaining thirteen bonds, with coupons attached; and, in the latter, damages for not delivering to him the said bonds, and for not paying to him the interest so collected thereon. Those suits, also, were pending, undetermined, when this bill was filed.

The bill contained other averments usual in bills of interpleader, and prayed that the defendants might be decreed to interplead and settle their rights to the said bonds and moneys, or might proceed and determine them, if possible, in said suit in the State Court of Chancery; or that, on the discontinuance of the latter suit, the plaintiffs might be at liberty to pay over the assets to the parties on being indemnified by this Court in so doing, or to pay the same into this Court, to be disposed of as it might direct, on the discontinuance of said suit in Chancery; that Yonge might be enjoined from prosecuting his suits at law, and Skelton and Frazer from prosecuting their suit in Chancery; and that the

The City Bank of New York v. Skelton.

plaintiffs, on paying the assets into Court, might be discharged from all liability to the defendants in the premises, and have allowed to them all their costs and counsel fees in all the suits.

A motion was now made, upon the bill, for provisional injunctions.

George William Wright, for the plaintiffs.

Samuel Sherwood, for Skelton and Frazer.

Erastus C. Benedict, for Yonge.

BETTS, J. Two questions have been discussed on this motion (1.) Whether the facts establish a case for a decree of interpleader; (2.) Whether this Court has jurisdiction to make such a decree.

The strong objection taken to the right of interpleader in this case is, that the plaintiffs received the deposit as bailees of Yonge, and became absolutely bound to him to return it at his call; and that the qualification in the deposit, that the written concurrence of Burritt should be necessary to a withdrawal of the deposit, operated only for a limited period, and ceased to have any effect after the 1st of September, 1844.

Eminent Judges speak of the doctrines respecting bills of interpleader as perplexing and not well defined. (2 Story's Eq. Jur. § 814, and notes.) The fundamental principle upon which relief by bill of interpleader is founded is, that two or more persons are claiming the same thing by different or separate interests, of a person who does not claim any interest therein himself, and does not know to whom he ought of right to surrender it, and that one or both have brought, or threaten to bring, actions against him. In such case, he may appeal to a Court of Equity to protect him from the vexation attending such suits, and also from being compelled to respond to several parties for the same thing. (2 Story's Eq. Jur.