Whenever the bill contains a prayer for an injunction, the money must be brought into Court before the Court will ordinarily act upon this part of the prayer.1

The common order for an injunction, on a bill of this nature, is, that it issue upon the plaintiff paying the money into Court. This is a condition precedent, and an order for an injunction, not containing it, will be discharged. If the money cannot be paid in, in time to stay a trial, application should be made to the injunction officer, to vary the order on the special grounds.2

To a bill of interpleader, it is requisite that the plaintiff should make an affidavit "that this bill is not filed in collusion with either of the defendants in the said bill named, but merely of his own accord, for relief in this Honorable Court." 3

The want of such an affidavit is a ground of demurrer.1

1 Story Eq. Pl. § 297; Mohawk & Hud. R. R. Co. v. Clute, 4 Paige, 384, 391; Richards v. Salter, 6 John. Ch. 445; Biggs v. Kouns, 7 Dana, 410; Dungey v. Angove, 3 Bro. C. C. (Perkins's ed.) 36, 37, note (a); 2 Story Eq. Jur. § 809; Fowler v. Lee, 10 Gill & John. 358; Eden Injunct. (2d Am. ed.) 403; Sieveking v. Behrens, 2 My. & Cr. 581; Pauli v. Von Melle, 8 Sim. 327; Meux v. Bell, 6 Sim. 175; Shaw v. Chester, 2 Edw. Ch. 405.

1 Smith Ch. Pr. (2d Am. ed.) 474; Eden Injunct. (2d. Am. ed.) 401; Shaw v. Coster, 8 Paige, 339; 2 Hoff. Ch. Pr. 103; Tobin v. Wilson, 3 J. J. Marsh. 67; Biggs v. Kouns, 7 Dana, 411; Mitf. Eq. Pl. by Jeremy, 143; Atkinson v. Manks, 1 Cowen, 691; Story Eq. Pl. § 291, 297; Stevenson v. Anderson, 2 Ves. & B. 410; Dungey v. Angove, 2 Sumner's Vesey, 313, Mr. Hovenden's note (5); 2 Story Eq. Jur. § 809; Farley v. Blood, 10 Foster (N. H.) 354, 361, 362; Wood v. Lyne, 4 De G. & Sm. 16. Where the plaintiff was abroad, and the case pressing, leave was granted to his solicitor to make the affidavit. Larabie v. Brown, 1 D. & J. 204; S. C. 5 W. Rep. 538; 23 Beav. 607. If the affidavit is made in behalf of a company by the registered officer thereof, he should state, that, to the best of his belief, the company does not collude. Bignold v. Audland, 11 Sim. 23. It is not required on a bill by the owner of an estate subject to a charge claimed conflictingly. Vyvyan v. Vyvyan, 5 L. T. N. S. 511; 2 Seton Dec. (3d Eng. ed.) 963.

As to such affidavit, see Braith. 27; and for its form, by sole plaintiff, ib. 356; by some or one of several copartners, ib. 369; by a public officer of a company, ib.; and by plaintiff's solicitor, plaintiff being out of jurisdiction, ib. 370; Wood v. Lyne, 4 De G. & Sm. 16; Larabie v. Brown, 14 Beav. 499.

Mitford Eq. Pl. by Jeremy, 143; Metcalf v. Hervey, 1 Ves. 248; Tobin v. Wilson, 3 J. J. Marsh. 67; Farley v. Blood, 10 Foster (N. H.) 354; Shaw v. Chester, 2 Edw. Ch. 405; Gibson v. Goldthwaite, 7 Ala. 281. See the form of demurrer for want of such an affidavit, Willis, 442; 2 Eq. Drafts, (2d ed.) 77. An objection to the form of the affidavit should be made by demurrer. Hamilton v. Marks, 5 D. & S. 638; Wood v. Lyne, 4 D. & S. 16. ́

Where the bill is filed by the officer of a company, on behalf of the company, the affidavit annexed ought to state, not that the plaintiff does not collude, but that to the best of his knowledge and belief, the company do not collude with the defendants.1

But by the practice in Connecticut it is not necessary to annex this affidavit of non-collusion.2

Collusion will not be presumed against this affidavit, nor can a counter affidavit prevail against it.3

But where there is a suspicion of collusion, the Court will direct an inquiry into the circumstances.1

The plaintiff need not swear that the bill is filed at his own expense.5 Nor that it was filed without the knowledge of either of the defendants.6

The bill may be either made an exhibit, and be referred to by the affidavit, or the affidavit may be annexed to it. If made an exhibit, the Master indorses on the back of it, "This parchment writing was produced and shown to A. B., and is the same referred to in his affidavit, sworn, the day of." If the bill is not exhibited, but the affidavit is annexed to it, the words of the affidavit then should be "that the bill hereunto annexed," instead of this bill." The affidavit is filed with the bill.7

The interpleading plaintiff, immediately on filing his bill, accompanied by the affidavit of non-collusion, may, without waiting for the appearance of the defendants, and even before a subpoena has been served, move ex parte for an injunction to restrain proceedings at law commenced against him, offering to pay the money in dispute into court.8

1 Bignold v. Audland, 11 Sim. 23.

* Nash v. Smith, 6 Conn. 421. See Jerome v. Jerome, 5 Conn. 352. The practice of Courts of Chancery in Connecticut regarding bills of interpleader, differs in this and other respects, from that of England and of many of the other United States. Consociated Pres. So. of Green's Farms v. Staples, 23 Conn. 544. Langston v. Boylston, 2 Sumner's Vesey, 101.

Dungey v. Angove, 2 Ves. jr. 304; Eden Injunct. (2d Am. ed.) 401. See Statham v. Hall, 1 T. & R. 30; Toulmin v. Reid, 14 Beav. 499.

* Metcalf v. Hervey, 1 Ves. 248; Eden Injunct. (2d Am. ed.) 401.

• Stevenson v. Anderson, 2 Ves. & Bea. 410; Dungey v. Angove, 2 Sumner's Vesey, 313, Mr. Hovenden's note (5).

71 Smith Ch. Pr. (2d Am. ed.) 474. It is not necessary that the affidavit should be fastened to the bill; it is enough if it is filed with the bill. Jones r Shepherd, 29 Beav. 293.

1 Smith Ch. Pr. (2d Am. ed.) 474.

If the defendant has appeared, he is served with a notice of motion.1

It appears to have been the practice to read an affidavit of the facts on the motion for an injunction.2 But this is not now required.3

In Croggon v. Symons, the Vice-Chancellor refused to grant an injunction at once to stay proceedings at law in an interpleading suit, and assimilated it to the common injunction. But this is not the practice.5

The plaintiff in a bill of interpleader moves at once upon a notice of motion for a special injunction on the payment of the money into court, without first obtaining the common injunction, as in other cases where actions at law are restrained. And the injunction not only restrains execution, but also trial, and all other proceedings.7

In Philling v. Edwards, the injunction was granted, although the trial was coming on the next day.9

A bill of this character will lie, although all but one of the defendants claiming the subject in controversy are out of the jurisdiction; otherwise, by fraudulently absenting themselves, they might prevent the other claimant from obtaining justice. If the answers of the absent defendants are not put in within a reasonable time a perpetual injunction will be awarded against them.10 In a case 11 Smith Ch. Pr. (2d Am. ed.) 474.

Langston v. Boylston, 2 Ves. jr. 101; Dungey v. Angove, 2 Sumner's Vesey, 313, Mr. Hovenden's note (2).

1 Smith Ch. Pr. (2d Am. ed.) 474; Walbanke v. Sparks, 1 Sim. 385.

43 Madd. 130.

1 Smith Ch. Pr. (2d Am. ed.) 474, 475; Dungey v. Angove, 2 Sumner's Vesey, 313, Mr. Hovenden's note (2); Hamilton v. Marks, 5 D. & G. 638; Jones

v. Gilman, Coop. 49. See Eden Injunct. (2d Am. ed.) 401 to 403.

6

Vicary v. Widger, 1 Sim. 15; Warrington v. Wheatstone, 1 Jacob, 205.

7 Warrington v. Wheatstone, 1 Jacob, 205.

Cited 1 Smith Ch. Pr. (2d. Am. ed.) 475.

1 Smith Ch. P. (2d Am. ed.) 475.

10 Martinius v. Helmuth, Cooper, 248; Stevenson v. Anderson, 2 Ves. & Bea. 112; Eden Injunct. (2d. Am. ed.) 404, 405. See Richards v. Salter, 6 John. Ch. 445. It is irregular for the Court to direct any inquiries as to the conflicting claims of the defendants, until the answers of all the defendants are filed. Masterman v. Lewin, 2 Ph. 182.

The ordinary practice appears to be, for the plaintiff, upon getting in all of the answers, to bring the cause to a hearing, when the Court will make such a decree or order as may be necessary to enable the Court to decide the question in dis

where the subject was a policy on a cargo lost, an injunction was granted in an interpleading suit to stay proceedings at law, although both defendants resided abroad.1 A fortiori, when a party has once appeared, he cannot, by subsequently absenting himself, prevent a decree.2

And after an answer has been put in by one of the defendants, should there be any improper delay in getting in the answers of the others, that will afford a special ground, upon which the party, who has answered, may move to have the money paid out to him, if it has been brought into Court.3

If one of the defendants does not appear, the bill may be taken as confessed as to him.4

Where a defendant suffers a bill to be taken as confessed against him, it is an admission, that, as to him, the bill was properly filed, and that he has made an improper claim against the fund.5

If one of the defendants is not personally served with process, being absent, and the bill is taken as confessed against him, the defendant who appears will not be entitled to the possession of the fund, until the expiration of the time limited by the statute for the other defendant to appear, unless he gives security to replace the fund, in case the other defendant appears and establishes his right to the same.6

Whenever the objection to a bill of this kind appears upon its face, advantage should be taken of it by demurrer. For if the defendants, instead of demurring, put in answers insisting, that the bill is improperly filed, they will only be allowed, upon the dismis sal of the bill, the costs to which they would have been entitled upon the allowance of a demurrer.7

pute between the defendants. Angell v. Hadden, 16 Ves. 202; Townley v. Deane, 3 Beav. 213; Meux v. Bell, 1 Hare, 73.

1 Mantinius v. Helmuth, Cooper, 245.

Farebrother v. Prattent, 5 Price, 305.

3 Hyde v. Warren, 19 Ves. 323; Dungey v. Angove, 2 Sumner's Vesey, 313, Mr Hovenden's note (4). See Richards v. Salter, 6 John. Ch. 445.

Farebrother v. Prattent, 1 Daniel Rep. 64; Farley v. Blood, 10 Foster (N. H.) 364, 365; Richards v. Salter, 6 John. Ch. 445. The decree for an interpleader will be as effectual as to those defendants who were duly served with process, and who have not appeared or made answer to the bill, as to those who are before the Court. Hodges v. Smith, 1 Cox, 357; 1 Madd. Ch. Pr. 177; Farley v. Blood, supra Badeau v. Rogers, 2 Paige, 209.

Aymer v. Gault, 2 Paige, 284.
Shaw v. Coster, 8 Paige, 339.

The defendants may put in answers admitting or denying the facts stated in the bill. If the defendants, or either of them, deny the allegations in a bill of this nature, or set up distinct facts in bar of the suit, the plaintiff must reply to the answer, and close the proofs, in the usual manner, before he can bring his cause to a hearing.1

Where the plaintiffs had replied to the answers, and served subpœnas to rejoin, it was held, that they could not move to have their costs paid out of the fund in Court, but must set down the cause for hearing.2

But where the defendant admits the facts stated in the bill, and in which the right to file a bill of interpleader rests, and set up no new facts as against the plaintiff, or in bar of his suit, it seems to be sufficient for him to file a replication, and to set the cause down for a decree to interplead, without waiting till the proofs are taken as between the defendants.3

A decree that a bill of interpleader is properly filed is the only decree, that the plaintiff is interested in obtaining.1

The amount or origin of the fund &c., is not the object of inquiry as against the plaintiff, except in reference to fraud or collusion on his part.5 But the amount and origin of the fund may be material, as between those called upon to interplead."

Where the decree goes on to order a reference to a Master by

1 City Bank v. Bangs, 2 Paige, 570; Jones v. Gilham, 1 Cooper, 49. But the defendants need not before this hearing enter into evidence as against each other. Thames &c. Co. v. Nash, 5 Sim. 280; Catherall v. Davies, 1 Gif. 326.

2 Jones v. Gilham, 1 Cooper, 49; Eden Injunct. (2d Am. ed.) 404.

3 City Bank v. Bangs, 2 Paige, 570. See The Thames and Med. Canal Co. v. Nash, 5 Sim. 280; Leonard v. Jamison, 2 Edw. Ch. 136. Where it appears, by the answers to a bill of interpleader, that each defendant has claimed the fund in dispute, no further proof of the fact is necessary to entitle the plaintiff to a decree. Balchen v. Crawford, 1 Sandf. Ch. 380.

Story Eq. Pl. § 297 (b); Atkinson v. Manks, 1 Cowen, 691. The only question at the hearing is, whether the defendants should interplead. Catherall v. Davies, 1 Gif. 326. Sometimes, however, the Court directs that an action already commenced may be proceeded in. 2 Seton Dec. (3d Eng. ed.) 964, 967; Aldridge v. Menser, 6 Ves. 418. Where one of the defendants in a bill of interpleader, by his answer, made a claim against the plaintiff beyond the amount admitted to be due, and beyond that which was admitted by the other defendants, it was held that he must be permitted to proceed at law to establish that part of his demand not in controversy with the other defendants. City Bank v. Bangs, 2 Paige, 570. Atkinson v. Manks, 1 Cowen, 691.

6 Ibid.