So, generally speaking, a bill of interpleader ought to be filed before or immediately after the commencement of proceedings at common law, and should not be delayed until after a verdict or judgment has been obtained. Cornish v. Tanner, 1 Younge & J. 333; Union Bank v. Kerr, 2 Md. Ch. 460; Yarborough v. Thompson, 3 Sm. & M. (Miss.) 291. It is, however, no objection to a bill of interpleader that it is filed after verdict at law, if the effect of the action at law was merely to ascertain the damages due on the claim of the plaintiff who was a defendant in the equity suit. Hamilton v. Marks, 5 DeG. & S. 638; 19 Eng. Law & Eq. 321. And see Griggs v. Thompson, 1 Ga. Dec. 146.

ARTICLE II.

FACTS ESSENTIAL TO SUSTAIN A RIGHT TO THE REMEDY.

Section 1. Applicant for relief must be disinterested. The first and most essential fact to be established in order to show the right of the party seeking relief to the remedy furnished by interpleader is, that such party claims no interest in or to the property or thing in dispute. Hathaway v. Foy, 40 Mo. 540. And where it appears that the party seeking the remedy claims an interest in, or a portion of, the fund in dispute, relief by interpleader cannot be granted. Moore v. Usher, 7

Sim. 384; Jacobson v. Blackhurst, 2 J. & H. 486; Wakeman v. Dickey, 19 Abb. 24; Lincoln v. Rutland, etc., R. R. Co., 24 Vt. 639; Hathaway v. Foy, 40 Mo. 540; Howe Machine Co. v. Gifford, 66 Barb. 599; Adams v. Dixon, 19 Ga. 513; Greene v. Mumford, 4 R. I. 313. Thus, while an auctioneer may compel a vendor, who claims the deposit money received at the sale of his property, to interplead with the vendee who claims its return, he cannot obtain this remedy while he himself claims to deduct his commissions from the deposit in question. Bignold v. Audland, 11 Sim. 24; Bleeker v. Graham, 2 Edw. Ch. 647. So, if any party seeking this relief has in any way lent himself to further the claims of either party to the fund in controversy, or to aid one in obtaining the possession thereof, to the exclusion of the other, he will have such an interest in relation to the subject-matter of the dispute as will justify a denial of the relief sought. Marvin v. Ellwood, 11 Paige, 365.

It is, however, no objection to a bill of interpleader, that the complainant has an interest in respect of other property not in the suit, but which might be litigated, that one party rather than another should succeed in the interpleader, so as to increase his own chance of success

in respect to such other property. Such interest may be termed an interest in the question, but not in the particular suit, and does not prevent one from filing an interpleader. Oppenheim v. Wolf, 4 N. Y. Leg. Obs. 259; S. C., 3 Sandf. Ch. 571.

In every case of interpleader, the court, in order to prevent its proceedings from being made the instrument of delay, or being used collusively, requires the complainant to file an affidavit that there has been no collusion between him and the other parties. Stevenson v. Anderson, 2 Ves. & B. 410; Mt. Holly, etc., Turnpike Co. v. Ferree, 2 C. E. Green (N. J.), 117; Starling v. Brown, 7 Bush (Ky.), 164. See, also, Manby v. Robinson, L. R., 4 Ch. App. 347; and, also, to bring the money or thing claimed into court; or, at least, that he should offer to do so by the bill. Atkinson v. Manks, 1 Cow. 691; Farley v. Blood, 30 N. H. 354; Williams v. Wright, 20 Tex. 499; Dorn v. Fox, 61 N. Y. (16 Sick.) 264, 268; Williams v. Walker, 2 Rich. (S. C.) 291. But see Nash v. Smith, 6 Conn. 421.

§ 2. No adequate remedy at law. Interpleader being an equitable remedy, it cannot be maintained in any case where the party seeking it has another plain and adequate remedy in the nature of an action at law. Oil Run Petroleum Co. v. Cady, 6 W. Va. 525; Dry Dock, etc., Church v. Carr, 3 Barb. 60. In other words, if the party can in any way exonerate himself from all liability in respect to the funds in his hands without filing a bill of interpleader, then he should not invoke that remedy. McDonald v. Allen, 37 Wis. 108; S. C., 19 Am. Rep. 754. Indeed, as a rule an interpleader cannot be sustained even when another plain and adequate remedy has been given by statute, since the remedy given by statute is generally considered as a legal remedy, in contradistinction to an equitable remedy. Board of Education v. Scoville, 13 Kans. 1. But the remedy given by statute may sometimes be an equitable remedy, and when it is, then it does not supersede some other previously existing equitable remedy unless it has been expressly so enacted, but the second remedy is merely cumulative, and the two remedies are in effect concurrent. Id.

§ 3. Must be ignorant of the rights of claimants. It is likewise essential to the rights of interpleader, that the person standing in the position of a stakeholder is ignorant of the rights of the different claimants to the fund held by him, or at least, that there is some doubt as to which of them is entitled to the fund, so that he cannot safely pay it to either. Bell v. Hunt, 3 Barb. Ch. 391; Strange v. Bell, 11 Ga. 103. Where two persons sue for the same debt or duty, and the defendant is ignorant of their respective rights, it is a proper case for an interpleader. Dreyer v. Rauch, 3 Daly, 434; 42 How. 22;

10 Abb. (N. S.) 243. And if the party seeking relief has acknowledged a title in one of the claimants, and has thus incurred a separate liability to him, the remedy by interpleader will be denied. shay v. Thornton, 2 Myl. & Cr. 1.

Craw

So, there are cases where a party seeking to compel others to interplead will be estopped from alleging his ignorance of the rights of all the claimants, and in such cases the remedy will be denied. Thus, a bona fide purchaser of goods will not be allowed to indirectly deny the title of his vendor by seeking to compel him, when demanding payment or return of the goods, to interplead with a stranger who makes a similar demand on the ground that the goods were originally obtained from him through fraud. Trigg v. Hitz, 17 Abb. (N. Y.) 436. And see Johnston v. Lewis, 4 Abb. (N. S.) 150; Shehan v. Barnett, 6 T. B. Monr. (Ky.) 592. And upon the same principle, a tenant will not be permitted to deny the title of his landlord, nor can he interplead him with a stranger. Seaman v. Wright, 12 Abb. 304. See, also, Metcalf v. Hervey, 1 Ves. 249; Cook v. Earl of Rosslyn, 6 Jur. (N. S.) 267; Crane v. Burntrager, 1 Cart. (Ind.) 165. So, a bailee or agent cannot, at law, dispute the original title of the person from whom he received the property; and it is the general rule that a strict bill of interpleader cannot be maintained by a bailee or agent, to settle the conflicting claims of the bailor or principal, and a stranger who claims the property by a distinct and independent title. Marvin v. Ellwood, 11 Paige, 365; Dixon v. Hamond, 2 B. & Ald. 313; First National Bank of Morristown v. Bininger, 26 N. J. Eq. 345; Nickolson v. Knowles, 5 Madd. 47. And see Hatfield v. McWhorter, 40 Ga. 269; Shaw v. Coster, 8 Paige, 339. But see as qualifications of the general rule, Crawford v. Fisher, 1 Hare, 436, 440; Wright v. Ward, 4 Russ. 215, 220; Gibson v. Goldthwaite, 7 Ala. 282; Reid v. Stearn, 6 Jur. (N. S.) 267; Badeau v. Tylee, 1 Sandf. Ch. (N. Y.) 270.

§ 4. Claims must be identical. It is an inflexible rule that the thing to which the parties make adverse claims, whether it be a debt, a duty, or specific property, must be one and the same thing; or, in other words, the claims must be identical. When the subject in dispute has a bodily existence, no difficulty can arise on the ground of identity; but where it is a chose in action which has no bodily existence, it becomes necessary to determine what constitutes identity. Where the claims made by the defendants are of different amounts, they never can be identical; but where they are the same in amount, that circumstance goes far to determine their identity. The amount, however, may not of itself be sufficient, for the amount may be the VOL. IV,- 20

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same and yet the debt may be different. The question, therefore, as to the identity of the debt is sometimes a difficult one and must, in each case, be determined by the original constitution and nature of the debt. Glyn v. Duesbury, 11 Sim. 148. And see Sieveking v. Behrens, 2 Myl. & Cr. 581; School District v. Weston, 31 Mich. 85. 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 interpleader suit, since the claims made against him are not identical; the one seeking to have the benefit of a contract, the other claiming the value of a chattel, which is the subject-matter of it. Slaney v. Sidney, 14 M. & W. 800. But where a party has been assessed in two different counties for the same personal property, he may maintain an 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; Dorn v. Fox, 61 N. Y. (16 Sick.) 264. 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 counter-claim 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, namely: who is the real purchaser of the estate, yet as against the auctioneer, their claims are for different things, namely: 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 Cr. & Ph. 197.

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 interpleader will not lie. Diplock v. Ham mond, 27 Eng. Law & Eq. 202. And it is an undeviating 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. Id.

But the right to the remedy by interpleader is founded, not on the consideration that a man is subjected to double liability, but on the fact that he is threatened with double vexation in respect of one liability. East & West India Dock Co. v. Littledale, 7 Hare, 60; Great Southern, etc., Railway Co. v. Corry, 15 W. R. 651. The foregoing rules do not, therefore, 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. Lowndes v. Cornford, 18 Ves. 299; Richards v. Salter, 6 Johns. Ch. 445; Hamilton v. Marks, 19 Eng. Law & Eq. 321; S. C., 5 DeG. & S. 638; Prudential Assurance Co. v. Thomas, L. R., 3 Ch. App. 74; Gibson v. Goldthwaite, 7 Ala. 281; Jones v. Farrell, 1 DeG. & J. 212.

But the claims must not only relate to the same debt, duty, or thing, they must, moreover, be in reality conflicting claims. Cochrane v. O'Brien, 2 J. & L. 380; S. C., 8 Ir. Eq. 241; Blair v. Porter, 13 N. J. Eq. 267. A mere pretext of a conflicting claim, or the mere possibility that there may be two liabilities, is not sufficient to support a bill of interpleader. Id.; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384, 392.

§ 5. Property or thing claimed must be definite. To entitle a person to the remedy of interpleader it is essential that the property or thing claimed should be certain and definite in its character. Lincoln v. Rutland, etc., R. R. Co., 24 Vt. 639. But the rule goes no further than this, and 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.

§ 6. Applicant for relief must be in possession. It is likewise essential, in order to sustain a bill of interpleader, that the complainant 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 his possession, 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 claimants. Burnett v. Anderson, 1 Mer. 405; Inland v. Bushell, 5 Dowl. 147. See, also, Tiernan v. Rescaniere, 10 Gill & J. (Md.) 217; Vosburgh v. Huntington, 15 Abb. 254. The bill cannot be sustained by a person out of possession, even where it is filed by an administrator, to settle the rights of the distributees. Martin v. Maberry, 1 Dev. (N. C.) Eq. 169.

§ 7. Diligence in applying for remedy. A party seeking relief by interpleader must use due diligence in making the application. Otherwise, the remedy may be denied. Brackenbury v. Laurie, 3 Dowl. P. C. 180; Larabrie v. Brown, 1 De G. & J. 205. Thus, where the remedy is sought by a sheriff, as a protection against an action at law, for the seizure of goods which are not the property of the person