How far action and order of interpleader are concurrent remedies.

thing claimed. Bedell v. Hoffman, 2 Paige, 199; Atkinson v. Manks, 1 Cow. 691; Shaw v. Coster, 8 Paige, 339; Trigg v. Hitz, 17 Abb. 436; Johnston v. Lewis, 4 Abb. N. S. 150; Code, § 122; Hoggart v. Cutts, 1 Craig & Ph. 197, 204.

In such cases the protection of the court ought to be extended upon principles of a most obvious equity, which require that the claimants should be compelled to interplead and settle the contest between themselves, without involving the plaintiff in a dispute in which he is not interested to any greater extent than as a mere stakeholder. Langston v. Boylston, 2 Ves. Jr. 109; Pearson v. Cardon, 4 Sim. 218; 2 R. & M. 609; Glyn v. Duesbury, 11 Sim. 147; Crawshay v. Thornton, 2 M. & C. 19.

The principle on which the jurisdiction is based was recognized at common law, and was applied where a chattel had come to a man's possession by accident or bailment, from both claimants jointly, or from those under whom both made title. The technical forms of pleading excluded the principle, except in these two cases; but in equity, where these forms did not exist, its operation was extended to all cases where the same thing, debt or obligation was the subject of both claims. Crawshay v. Thornton, 2 M. & C. 21; Glyn v. Duesbury, 11 Sim. 147.

b. How far the action and order of interpleader are concurrent remedies. The action of interpleader, as it existed under the former, and still exists under the present, practice, is a remedy concurrent with that furnished by section 122 of the Code. McKay v. Draper, 27 N. Y. (13 Smith) 256 (260); Patterson v. Perry, 14 How. 505; S. C., 6 Duer, 686; Beck v. Stephani, 9 How. 193. The Code has introduced no new cause of interpleader, but has simply provided a more simple remedy, which may be resorted to where previously the only remedy was by action. Vosburgh v. Huntington, 15 Abb. 254; McKay v. Draper, 27 N. Y. (13 Smith) 256. The right to the remedy by action or by order springs from substantially the same state of facts; and although the remedies are distinct, the principles applicable to the one are equally applicable to the other, and do not require to be separately discussed. The proceedings in the two cases are, however, wholly dissimilar, and are therefore separately treated. c. Election between remedies. Any party against whom adverse claims for the same thing, debt, or duty, is sought to be enforced by action, and who makes no claim to the subject of the controversy, may, at his option, seek his remedy by action under

Interpleader-Facts essential to a right to the remedy.

the rules and practice of the former court of chancery, or he may apply for the order allowed in such cases under the provisions of section 122 of the Code. There is but one limit to this right of election between the remedies furnished by the action and the order of interpleader. The person, against whom the adverse claims are made, may resort to the action of interpleader before any action is commenced against him, by either of the adverse claimants, while the order can be obtained only after an action has been actually commenced against him to enforce one or more of the conflicting claims. Richards v. Salter, 6 Johns. Ch. 445; Code, 122; Patterson v Perry, 14 How. 505; S. C., 6 Duer, 686; McKay v. Draper, 27 N. Y. (13 Smith) 256. But where such action has been commenced, and the defendant therein is entitled to his election, if he exercises that right by commencing an action of interpleader, he cannot, at the same time, obtain the relief provided by an order under section 122 of the Code. Washington Life Ins. Co. v. Lawrence, 28 How. 435.

The statute does not abrogate the right to relief by an action of interpleader; but, if an action is commenced for that purpose, the remedy by order will not also be granted. Sturgess v. Claude, 1 Dowl. 505; Arrayne v. Lloyd, 1 Bing. (N. C.) 720; 1 Sc. 609.

Section 2. Facts essential to a right to the remedy.

a. In general. As has been previously stated, the facts which will entitle a person to maintain an action of interpleader will also entitle him to the order, under the Code, if the claims against him are sought to be enforced by action. The principles governing the right to relief, under either form of the remedy, are identical, and the principles laid down in this section are applicable to the remedy by action or by order.

It is a general rule that bills of interpleader will not be encouraged while there are other means of adjusting conflicting claims with safety to the stakeholder. But a party holding a fund in which he has no interest, and to which adverse claims are set up, will not be compelled to stand an action at law brought by either party, even under a promise of indemnity from the other. Neither will he be obliged to exercise any judgment on the subject of the conflicting rights of the parties, when one threatens or commences a suit, and the other forbids payment. Bleeker v. Graham, 2 Edw. Ch. 647; Langston v. Boylston, 2 Ves. Jr. 101 (109); Atkinson v. Manks, 1 Cow. 691. But, on the other

Interpleader - Party seeking relief must be disinterested.

hand, he will be entitled to some form of the remedy of interpleader, if the facts of the case are otherwise in harmony with the following principles:

b. Party seeking relief must be disinterested. The right to the relief furnished by the remedy of interpleader is, in all cases, founded upon the fact that two or more persons are making a claim against a third person for the same thing, and that the party against whom these claims are urged claims no beneficial interest in the property or thing in dispute, but merely asks to be allowed to deposit the same in court, and that the persons who have commenced, or are threatening him with suits, in respect thereto, may be compelled, by order or decree of the court, to settle their claims among themselves, and not with him, or at his expense or hazard. Atkinson v. Manks, 1 Cow. 691; Langston v. Boylston, 2 Ves. Jr. 101, 109.

The first and most essential fact to be established, 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. No relief of this nature can be granted where it appears that the party seeking the remedy claims an interest in, or a portion of, the fund in dispute. Wakeman v. Dickey, 19 Abb. 24; Atkinson v. Manks, 1 Cow. 691; Oppenheim v. Leo Wolf, 3 Sandf. Ch. 571; S. C., 4 N. Y. Leg. Obs. 259. Neither can this relief be obtained, where the party against whom conflicting claims are made, asks any relief against either of the claimants, beyond permission to pay the money or deliver the property to the one to whom it of right belongs, and to be thereafter protected against the claims of both. Bedell v. Hoffman, 2 Paige, 199; New York & New Haven R. R. Co. v. Schuyler, 1 Abb. 417; Schuyler v. Hargous, 3 Rob. 673; S. C., 28 How. 245; Mitchell v. Hayne, 2 Sim. & Stu. 63; Atkinson v. Manks, 1 Cow. 691. So a denial of any liability to either of the claimants, and a neglect to bring the property or thing in dispute into court, will be fatal to any application for this remedy. McHenry v. Hazard, 45 Barb. 657. In all cases the party seeking relief by interpleader must be wholly disinterested, and have no interests conflicting with, or adverse or hostile to, those of either of the claimants. New York & New Haven R. R. Co. v. Schuy ler, 1 Abb. 417; Lincoln v. Rutland & Burlington R. R. Co., 24 Vt. 639. Thus, while an auctioneer may compel a vendor, who claims the deposit money received at a sale of his property,

Interpleader - Must have no adequate remedy at law.

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. Bleeker v. Graham, 2 Edw. Ch. 647; Mitchell v. Hayne, 2 Sim. & Stu. 63; Moore v. Usher, 7 Sim. 384; Bignold v. Audland, 11 id. 24. 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 subjectmatter of the dispute as will justify a denial of the relief sought. Marvin v. Ellwood, 11 Paige, 365. The right to the remedy of interpleader always depends upon the fact that the party claiming the right is the mere holder of a stake which is equally contested by other parties, and as to which the plaintiff stands wholly indifferent between them; and that, when the respective rights of the claimants are settled, nothing further remains in controversy. Lincoln v. Rutland & Burlington R. R, Co., 24 Vt. 639.

In order to prevent the proceeding by interpleader from being resorted to for the purpose of giving an advantage to one of the claimants over the other, the court will require the party seeking the relief to accompany his complaint or application with an affidavit that there is no collusion between him and any of the parties, and to bring the money or thing claimed into court, so that he cannot be benefited by the delay of payment which may result from the proceeding. Atkinson v. Manks, 1 Cow. 691; Farley v. Blood, 30 N. H. (10 Foster) 354; Code, § 122.

The statute does not apply where the subject-matter of the claim has arisen out of some illegal transaction, and therefore an order of interpleader will not be granted in an action brought against the holder of a stake deposited with him to abide the event of an illegal race. Applegarth v. Colley, 2 D. N. S. 223.

c. Must have no adequate remedy at law. It is essential to the right to the remedy of interpleader that the party asserting that right has no protection at law against the consequences of the conflicting claims, or that the legal remedy, if any exists, is inadequate to afford complete protection against them. Dry Dock Methodist Episcopal Mission Church v. Carr, 2 Barb. 60; Bedell v. Hoffman, 2 Paige, 199; Mohawk and Hudson R. R. Co. v. Clute, 4 id. 384.

Interpleader - Must be ignorant of the rights of the claimants.

d. Must be ignorant of the rights of the claimants. It is also essential to the right 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. Mohawk and Hudson R. R. Co. v. Clute, 4 Paige, 384; Wilson v. Duncan, 11 Abb. 3; Bell v. Hunt, 3 Barb. Ch. 391; Shaw v. Coster, 8 Paige, 339. If it appears that the party seeking to compel adverse claimants to interplead is fully acquainted with the rights of the respective parties, or, if it is shown by him in his complaint or affidavit that one of the claimants has no right to the fund or property in controversy, the court will leave the parties to adjust their claims at law. Ib.

In certain cases, a party seeking to compel others to interplead will be estopped from alleging his ignorance of the rights of all the claimants, and in these cases the remedy will be denied. Thus, a bona fide purchaser of merchandise will not be allowed to indirectly deny the title of his vendor, by seeking to compel such vendor, 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. 436; Johnston v. Lewis, 4 Abb. N. S. 150. 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. And it is a well-settled principle that a bailee cannot deny the title of his bailor, nor can a vendee deny the title of his vendor. Marvin v. Ellwood, 11 Paige, 365; Shaw v. Coster, 8 id. 339; Lund v. Seaman's Bank for Savings, 37 Barb. 129; 23 How. 258. But a vendee will not be estopped from alleging ignorance of the title of his vendor where two parties claim to have sold the goods for which a demand for the payment is made against him by each. Johnston v. Lewis, 4 Abb. N. S. 150.

It is also a general rule that 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. Crawshay v. Thornton, 2 Mylne & Craig, 1.

e. Claims of parties must be identical. It is an invariable rule that the thing to which the parties make adverse claims, whether it be a debt, a duty, or specific property, must be one