3 witnesses, or to take testimony de bene esse, must be supported by an affidavit stating the reasons which render such a proceeding necessary. A bill of interpleader, and perhaps also a bill in the nature of an interpleader, should be supported by an affidavit by the plaintiff that he does not collude with either of the defendants; or if the plaintiff be a corporation, by one of its officers, that, to the best of his knowledge and belief, the plaintiff does not so collude. "Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified under oath." Every bill which it is desired to use in support of a motion for a stay order, special injunction, substituted service, or other interlocutory application, other than one for a common injunction, must be accompanied by an affidavit verifying the bill itself or the substance of its allegations; but the affidavit need not be filed with the bill, nor before the notice of a motion for the interlocutory relief, and its omission does not make the bill demurrable. In the first three instances, where an affidavit is required, the defendant can only take advantage of the defect by demurrer. By plea or answer the omission will be waived. It is doubtful whether, when an affidavit is required, one is sufficient which merely alleges that the bill is true to the best of the affiant's knowledge, information and belief.10 § 88. Bills of interpleader. A bill of interpleader is a petition filed by a disinterested person holding a fund or thing to which two or more who are made defendants set up conflicting claims, between whom he cannot decide without incurring the risk, if he delivers the property to one, of being finally obliged to pay the other damages for having done so.'1 It can only be filed by one who 2 Philips v. Carew, 1 P. Wms. 117; Daniell's Ch. Pr. (2d Am. ed.) 452. Metcalf v. Hervey, 1 Ves. Sen. 248. 4 Bignold v. Audland, 11 Simons, 23. "Rule 94. See $$ 12, 76, 87, 207. 6 See ch. XV. 7 Hughes v. Northern Pac. Ry. Co., 18 Fed. R. 106, 110; Black v. Henry E. Allen Co., 42 Fed. R. 618, 622; Cobb v. Clough, 83 Fed. R. 604. 8 Findlay v. Hinde, 1 Pet. 241, 244; claims no interest in the prop Crosse v. Bedingfield, 12 Simons, 35; § 88. 1 Mitford's Eq. Pl., ch. 1; Story's Eq. Pl., §§ 291-297; Daniell's Ch. Pr. (2d Am. ed.) ch. xxxii, erty in question, and who seeks no other relief than leave to deposit it in the care of the court, and be relieved from all danger of further vexation concerning the same. The conflicting claims must be doubtful. The claimants must seek the same thing, not merely the same amounts under different contracts. A tenant or agent may not, by filing such a bill, dispute the title of his lessor or principal when a demand is made upon him by a stranger claiming under title paramount;5 nor can he thus compel an interpleader of two adverse claimants from whom he has taken independent leases of the same property. He may, however, thus obtain relief when different persons claim under assignments from the person to whom he first owed the debt. A licensee, in an action by his licensor for royalties, cannot interplead a third person who claims an interest in the patent. A bill of interpleader may be filed before or after proceedings at law have been begun against the complainant; but no injunction can be granted to restrain a proceeding already begun in a State court; 10 nor, according to the English rule, to stay proceedings in ejectment in any court." If a suit in equity have been already begun against the stakeholder, he may perhaps obtain relief by a petition therein; 12 but the more prudent course is for him to file a new bill.13 The fact that one of the conflicting claims is actionable at law and the other is purely equitable, will not deprive him of relief. The enactment of a State statute giving similar relief upon motion by the defendant to an action at law, does not deprive equity of its original jurisdiction.15 14 9 2 Killian v. Ebbinhaus, 110 U. S. 568; Langston v. Boylston, 2 Ves. Jr. 101; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.), 384; Jackson & Sharp Co. v. Pearson, 60 Fed. R. 113, 123. 3 Shaw v. Coster, 8 Paige (N. Y.), 339; Cochrane v. O'Brien, 2 Jones & La T. 380; Story's Eq. Pl., § 292. 4 Hoggart v. Cutts, 1 Cr. & Ph. 197; Story's Eq. Pl., § 293. 5 Dungey v. Angove, 2 Ves. Jr. 304, 310; Lowe v. Richardson, 3 Madd. 277; Story's Eq. Pl., § 295. The most 6 Standley v. Roberts, 59 Fed. R. 445. 836. 15 Barry v. Mutual Life Ins. Co., 53 common kind of interpleader suits at the present time are those brought by insurance companies against conflicting claimants to the proceeds of policies issued by them.16 A bill of interpleader should state the manner in which the plaintiff obtained possession of the property in question, and admit that he has no interest therein. It should set forth the claims of the defendants, showing that they conflict, and that he is ignorant of their respective rights, and cannot determine between them without hazard to himself. It should offer to deposit the fund or other property in the custody of the court; and conclude with a prayer that upon such deposit the defendants may be enjoined from further molesting him about the matter in question; that they be required to interplead and settle their respective rights among themselves; and that he may have his costs out of the fund, if there be one, otherwise from the defendants. The bill must be accompanied by an affidavit; which, when filed by a natural person, should be sworn to by him, and state that "this bill is not filed in collusion with either of the defendants named, but merely of his own accord for relief in this Honorable Court." 18 If a corporation be the complainant, one of its officers should make the affidavit, swearing that, to the best of his knowledge and belief, the corporation does not collude with either of the defendants.19 The omission of the affidavit is a ground for a demurrer.20 The bill should also conform to the provisions of the rules regulating original bills. No other step can be taken in the cause until after deposit in court of the fund or other property in dispute. It has, however, been held in England that a bill is not demurrable for the omission of an offer so to do.22 It is better practice to obtain an order ex parte permitting such payment.23 When that is done, an injunction will be granted re 21 N. Y. 536; Wood v. Swift, 81 N. Y. 31, 35; Board of Education v. Scoville, 13 Kan. 17, 30; Prudential Assurance Co. v. Thomas, L. R. 3 Ch. App. 74, 77. 19 Bignold v. Augland, 11 Simons, 23. 20 Metcalf v. Hervey, 1 Ves. Sen. 248; Tobin v. Wilson, 3 J. J. Marsh. (Ky.) 67; Mitford's Eq. Pl., ch. 1. 21 Meux v. Bell, 6 Simons, 175; 16 Spring v. South Carolina Ins. Co., Williams v. Walker, 2 Rich. Eq. 8 Wheat. 268. 17 Mitford's Eq. Pl., ch. 1; Story's Eq. Pl., SS 291–297. (S. C.) 291. 22 Meux v. Bell, 6 Simons, 175. 23 Williams v. Walker, 2 Rich. Eq. 18 Metcalf v. Hervey, 1 Ves. Sen. (S. C.) 291. 24 straining the defendants from suing the plaintiff, and from continuing any action already begun touching the matter in dispute. The injunction is usually granted to take effect upon payment of the fund into court.25 Under special circumstances, however, a stay order might be granted until the complainant had an opportunity to do so.26 Upon an argument to dissolve this injunction before hearing, it seems that the defendants cannot contradict the affidavit that there is no collusion; 27 but a reference may be directed when such a charge is made, and at the hearing collusion may be shown.28 In England, a bill of interpleader can be successfully maintained though all the defendants are beyond the jurisdiction of the court.29 Such suits are usually heard on bill and answers; although there is no reason why testimony should not be taken. If at the hearing the cause is ripe for a decision, the court will then decide the controversy between the defendants.30 If not, it will enter a decree dismissing the plaintiff with his costs, enjoining the defendants in accordance with the prayer of the bill, and directing them to interplead." If the claims on both sides are purely legal, an action or an issue at law will usually be directed. If one of them is of an equitable nature, and sometimes when both are legal, a reference to a master is usually ordered.32 At the hearing, each defendant may read the other's answer against him.33 If one of them has allowed the bill to be taken as confessed against him, this is considered as an admission that the bill was properly filed, and that he made an im 24 Sieveking v. Behrens, 2 Myl. & Cr. 581. 30 Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden, 16 Ves. 202; 25 Sieveking v. Behrens, 2 Myl. & City Bank v. Bangs, 2 Paige (N. Y.), Cr. 581. 26 Sieveking v. Behrens, 2 Myl. & Cr. 581; U. S. R. S., § 718. 27 Stevenson v. Anderson, 2 Ves. & B. 407; Manby v. Robinson, L. R. 4 Ch. App. 347; Fahie v. Lindsay, 8 Oreg. 474. 28 Manby v. Robinson, L. R. 4 Ch. App. 347; Langston v. Boylston, 2 Ves. Jr. 101; Dungey v. Angove, 2 Ves. Jr. 304. 29 Martinius v. Helmuth, G. Cooper, 248; Stevenson v. Anderson, 2 Ves. & B. 412. Contra, Herndon v. Ridgeway, 17 How. 424; and see § 96. 570. 31 Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570. 32 Daniell's Ch. Pr. 1765; Story's Eq. Jur., § 822; Angell v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570. 33 Bowyer v. Pritchard, 11 Price, 103; Daniell's Ch. Pr. 1765. See Penn Mut. L. I. Co. v. Union Tr. Co., 83 Fed. R. 891. 35 34 proper claim against the fund. If, after answer, one of them defaults at the hearing, the court will enter a decree after hearing the other. The plaintiff, if successful, is entitled to his costs out of the fund, if there be one.36 Otherwise, from the defendant whose claim is finally held bad." These costs, as well as the costs of the successful defendant, must eventually be paid by him whose claim is finally dismissed.38 It has been said that when the bill is dismissed, there can be no further proceedings in the cause as between the defendants; not even by consent; inasmuch as the court has thereby lost jurisdiction. After a decree in the plaintiff's favor, the cause is terminated as to him; and in case of his subsequent death the cause will proceed without a revivor.40 § 89. Bills in the nature of interpleader.- Where the plaintiff claims for himself some interest in the fund or matter in question, or does not admit the whole of a defendant's claim, or the defendants claim different amounts, although a bill of interpleader may not, a bill in the nature of an interpleader may, perhaps, be sustained. The frame of such a bill and the proceedings thereunder should conform, mutatis mutandis, to those of a strict bill of interpleader. After payment of what he admits to be due, a decree may be entered discharging the plaintiff as to that, and directing the suit, or, if an action at law had previously been begun, the latter, to proceed till his disputed rights are determined.2 § 90. Bills of certiorari.— A bill of certiorari was a bill filed in a superior court of equity for the purpose of removing thither a suit in equity pending in an inferior court, on account 34 Badeau v. Rogers, 2 Paige (N. Y.), 209; Fairbrother v. Prattent, 1 Daniel, 64. But see Standley v. Roberts, 59 Fed. R. 836. 35 Hodges v. Smith, 1 Cox Eq. 357. 36 Dunlop v. Hubbard, 19 Ves. 205; Dowson v. Hardcastle, 2 Cox Eq. 279. 37 Aldridge v. Mesner, 6 Ves. 418; Mason v. Hamilton, 5 Simons, 19; Daniell's Ch. Pr. 1767. 38 Mason v. Hamilton, 5 Simons, 19; Cowtan v. Williams, 9 Ves. 107; Daniell's Ch. Pr. (2 Am. ed.) 1766, 1767. 39 Jennings v. Nugent, 1 Molloy, 134. 40 Anon., 1 Vern. 351; Jennings v. Nugent, 1 Molloy, 134; Daniell's Ch. Pr. 1765. § 89. Dorn v. Fox, 61 N. Y. 264; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.), 385; Story's Eq. Pl § 2976; Daniell's Ch. Pr. (2d Am. ed.), 1768. Contra, New England Mutual Life Ins. Co. v. Odell, 50 Hun (57 N. Y. S. C. R.), 279. 2 City Bank v. Bangs, 2 Paige (N. Y.), 570. See Groves v. Senteel, 153 U. S. 465; s. C., 66 Fed. R. 179. |