versed." To the same effect is McCauley v. Sears (Idaho) 34 Pac. 814, in which section 4109 of the statutes of that state were construed, which is similar to section 43 here relied upon. Bank v. Skillings, 132 Mass. 410; Railroad Co. v. Arthur, 90 N. Y. 234; Dodge v. Lawson (Super. N. Y.) 19 N. Y. Supp. 904.

It is also contended by the plaintiff in error that, in order to sustain the right of interpleader under this section, Williamson must not have incurred an independent and unconditional liability to that which is claimed by the bank, and that, since the pleadings charge the defendant with two separate and distinct liabilities, an affidavit for interpleader will not lie to bind both in one suit. In Mining Co. v. Hodges, 59 Fed. 836, 8 C. C. A. 305, the mining company, in 1887, leased a coal claim from a syndicate composed of Davis, Nelson, Phillips, and Standley. After $50 had been paid to the lessees, the company notified the lessors that there was no coal on the claim, and the $50 was returned. In 1888 the company took another lease from a syndicate composed of Adams, Davis, James, Hodges, and McBride. In 1889, Standley, Phillips, and another brought suit against the coal company for rent of the claim under the lease of 1887. The company answered that it owed some one $300 for coal mined on the leased premises; that it had taken the two leases before mentioned; that the two sets of lessors claimed title adversely to each other; that the defendant was induced to take the first lease by misrepresentation; and that, if it paid under the lease pleaded, it would be obliged to pay under the second as well; and asked that the second set of lessors be brought in, and compelled to interplead for the fund. The trial court on first hearing dismissed the second lessors from the case, and this judgment was affirmed in the circuit court of appeals; Judge Sanborn saying: "First. No case for an interpleader can be made unless the adverse claimants seek to recover the same thing, debt, or duty. Second. No case for an interpleader can be made where the holder or debtor has made an independent, personal agreement with some of the claimants regarding the subject-matter claimed, so that he is under a liability to them beyond that which arises from the title to the subjectmatter. The statutes of Arkansas in force in the Indian Territory do not abrogate, but emphasize, these rules. They provide a summary method by which, where it appears 'in any action upon contract or for the recovery of personal property that some third party, without collusion with him [the defendant], has or makes a claim to the subject of the action, and that he is ready to pay or dispose thereof as the court may direct,' the court may order that the third party shall appear, and maintain or relinquish his claim against the defendant. Mansf. Dig. par. 4917. Statutes of this character are in force in

or

England and in many of the states, and are universally held to introduce no new cause of interpleader. Statutes 1 & 2, Wm. IV. c. 58; Belcher v. Smith, 9 Bing. 82; Pustet v. Flannelly, 60 How. Prac. 67-69; Johnson v. Maxey, 43 Ala. 521-541. In Belcher v. Smith, supra, a case which arose under an English statute much more comprehensive than the Arkansas statute before us,-the court declared that 'our duty is to see that the party applying for the exercise of our discretion has not voluntarily put himself into the situation from which he calls on the court to extricate him.'" "The reason for and the necessity of a strict enforcement of the second rule is obvious. Parties claiming title to the thing in dispute ought not to be, and cannot properly be, compelled to litigate any rights but those in controversy between themselves. If the holder of the subject-matter in dispute has placed himself under an independent personal obligation to one more of the claimants, by which his liability to deliver the thing or pay the debt in question may be determined without a decision of the controversy between the claimants, it is plain that no litigation between the latter can ascertain the rights of the holder or debtor upon his personal obligation. Nor does the fact that the latter claims that his personal agreement was obtained by the fraud or misrepresentation of the obligee relieve the embarrassment, or except the case from this rule. The question presented by such a claim arises entirely between the parties to the personal obligation of the holder or debtor. It is nothing to the other claimants, nor are they interested in, or proper parties to, the litigation over it.. It would be a monstrous proposition that one who makes agreements with two persons to sell and deliver the same article to each of them could bring the article into court, and compel the two purchasers to litigate the question which had the better right to the thing, before either could recover it of him, or that a tenant of an owner could take a second lease of the same premises from one claiming title to them, and then compel the real owner and the pretended owner to litigate, not only the title to the premises, but the validity of the leases the tenant himself had taken, before either lessor could recover his rent. If such a proposition could be sustained, any tenant might treat his landlord to as many suits as he could obtain leases of his premises. These independent personal obligations of the defendant to the adverse claimants to this mine, make it impossible for it to present any case for an interpleader here. If it has fallen into a pit of its own digging, the courts cannot make the interpleader its substitute. * * * Moreover, the plaintiffs and the interpleaders do not claim to recover the same debt from the defendant if A. makes one promissory note for $500, dated October 1, 1890, payable to the order of B. and C. 6 months from its date, and another, for

the same amount, dated January 25, 1891, payable to the order of B. and D. 20 months from its date, and the respective payees sue the makers on their respective notes, it is absurd to say that B. and C. claim to recover of A. the same debt as do B. and D. The case here presented is yet stronger for the interpleaders. The plaintiffs claim to recover a debt which the defendant promised to pay to Davis, Standley, Phillips, and Nelson by the lease of October 1, 1887, for the term of 6 years, with a privilege of 20 years more. If the interpleaders claimed, by assignment or otherwise, to recover any part of the debt due under that lease, there would be a proper case for an interpleader. But they do not. Davis and Nelson both repudiated that lease, and expressly disclaimed any rights under or interest in it. The only claim of the interpleaders is that the defendant owes them rent due under the lease to Adams, Davis, James, Hodges, and McBride, dated January 25, 1888, for a term of 20 years from that date. Thus the plaintiffs and interpleaders, respectively, claim to recover of the defendant no part of the same debt, but two independent debts arising under independent leases, of different dates and different terms, payable to different lessors. Nor can the interpleaders be held as parties defendant to this action under the Arkansas statute in force in the Indian Territory, which provides that: 'Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the questions involved in the action.' Mansf. Dig. par. 4940; section 3908, Okl. St. The only controversy it is necessary to decide in order to determine the action between the plaintiffs and defendant is that over the validity of the lease of October 1, 1887, between them. In that controversy the interpleaders neither have nor claim any interest. It can be, and in fact it must be, completely determined in an action between the plaintiffs and defendant, because they are the only parties interested in the question. Its decision in the action between them cannot in any way determine or affect the rights of the interpleaders against the defendant, or of the defendant against the interpleaders, under the lease between them of January 25, 1888, or the rights of the plaintiffs and the interpleaders against each other to the title to the mine, and hence the latter are neither necessary nor proper parties to plaintiffs' action on their lease." Mining Co. v. Hodges, 59 Fed. 841843, 8 C. C. A. 305.

In Insurance Co. v. Pingrey, 141 Mass. 411, 6 N. E. 93, the insurance company had, in 1874, issued to Franklin Pingrey a policy on his life in favor of his mother, Elizabeth Pingrey, who paid the premiums. In 1882 the insured surrendered that policy, and received a new one designated as a continuation of the other, but payable to

Clara Pingrey, the insured's wife. On the death of the insured the insurance company filed its bill to compel the two beneficiaries to interplead. The supreme court of Massachusetts said: "The questions aris ing between the plaintiff and the different defendants cannot all be tried in an issue between the two defendants alone. The mother claims to be entitled under the first policy. The widow claims under the second policy. By issuing the two policies, the plaintiff has exposed itself to both of these claims, and must meet them as best it may. The difficulty of maintaining the bill of interpleader is not technical, but fundamental. In this form of proceeding we cannot inquire whether the plaintiff has incurred a double liability. That result is possible. The plaintiff ought to be in a position to be heard upon that question; but on a bill of interpleader, which assumes that the plaintiff is merely stakeholder, the plaintiff cannot be heard. Houghton v. Kendall, 7 Allen, 72. A plaintiff cannot have an order that the defendants interplead, when one important question to be tried is whether, by reason of his own act, he is under a liability to each of them. Cochrane v. O'Brien, 2 Jones & L. 380: Desborough v. Harris, 5 De Gex, M. & G. 439; Baker v. Bank, 1 C. B. (N. S.) 515; Story, Eq. Pl. par. 291, et seq.; Pom. Eq. Jur. par. 1320 et seq. Bill dismissed."

In Conley v. Insurance Co., 67 Ala. 472, which was an exactly similar case, the court said: "It is not every case in which a party may be liable to double vexation, or in which, by different or separate interests, two or more persons claim of him the same thing, or the same debt or duty, that a court of equity will come to his assistance, and compel the claimants to interplead. The party must show that he stands not only indifferent between the claimants, that he is without interest in the controversy to be waged between them, but it must also appear that he is in the relation of a mere innocent stakeholder or depositor, and that by no act on his part the embarrassment of conflicting claims and the peril of double vexation has been caused. When he stands to either of the parties in the relation of a wrongdoer, or it appears by his own act or conduct double claims have been caused, he is not innocent; he is not without interest; and the court will not intervene to relieve him from the embarrassment in which he has voluntarily involved himself. Shaw v. Coster, 8 Paige, 339; 35 Am. Dec. 690; Quinn v. Green, 1 Ired. Eq. 229; Crawshay v. Thornton, 2 Mylne & C. 1; Sablicich v. Russell, L. R. 2 Eq. 441. If there is embarrassment of conflicting claims, and the insurance company stands in peril of double vexation, and double liability for the same debt or duty, it is obvious the embarrassment and peril spring from its own voluntary acts and conduct, and not from the acts and conduct of either of the claimants. The insurance

*

company, by making the change in the policies, has given rise to the rival claims upon it, and has committed a wrong against the original beneficiaries. It is not the office of a court of chancery to relieve them from the consequences of the wrong, or the double liability incurred by their erroneous conduct. Nor can it be just that the court should intervene, and compel litigation between parties, who, it may be, have each valid claims against the company, and no cause of controversy between themselves. If there

be any peril of double vexation for the same debt or duty, if there are, in fact, conflicting claims, they have their origin and life in the conduct-in the act-of the insurance company, not in the act or conduct of either of the claimants; and it is against their acts, and not its own, the insurance company can ask relief. * zj The company has a direct personal interest, according to the averments of the bill, in defeating the claim of one or the other of the defendants, and, having that interest, has no right to an interpleader."

In Bechtel v. Sheafer, 117 Pa. St. 555, 11 Atl. 889, the court say: "It is true, as a general rule, the party seeking relief by an interpleader must not have incurred any independent liability to either of the rival claimants. If he has expressly acknowledged the title or right of one of them, and agreed to hold the property for him, or, disregarding the adverse claim of one, has by contract made himself liable in any event to the other, he cannot be said to stand indifferent between them." The rule so announced was followed in De Zouche v. Garrison, 140 Pa. St. 430, 21 Atl. 450.

In James v. Pritchard, 7 Mees. & W. 215, plaintiff sued in debt to recover for a rick of hay sold defendant. The plea of defendant was that he had contracted with plaintiff for the hay, but had been notified by one Saunders, administrator of Simlett, that the hay belonged to his intestate. Plea asked that plaintiff and Saunders be compelled to interplead (upon a practice similar to ours), but Baron Alderson denied the application, saying tersely: "I think the rule must be dis-charged, and that this is not a case within the interpleader act. The defendant has made a bargain with the plaintiff, and he must perform it, or show good cause why he does not." Applying those facts and the legal principle just announced, it seems that here Williamson has promised Goodrich to pay $5,000 on the note in suit, but has been informed by the intervener that it would charge him with a fraud in the execution of that note. We can easily imagine what the eminent Baron Alderson would say were he trying this case. His judgment would be: "The defendant has made a bargain with the plaintif, and he must perform it, or show good cause why he does not." 3 Pom. Eq. Jur. par. 1326; Wakeman v. Kingsland, 46 N. J. Eq. 113, 18 Atl. 680; Atkinson v.

Manks, 1 Cow. 691. Mr. Freeman, in a note to the case of Shaw v. Coster, 35 Am. Dec. 690, sums up the doctrine thus: "If a party, by his own folly or inadvertence, or even through misfortune, becomes liable to deliver the same property or to pay the same debt to two different claimants, he cannot relieve himself from the predicament by interpleader."

It is also contended that the claims of all the parties must be strictly legal, and that equitable claims are not within the statute. Upon this proposition it is said by Judge Story in his Equitable Jurisprudence (section 822) that: "An issue or a direction to interplead at law would be obviously improper in all cases, except those where the titles on each side are purely legal. Equitable titles can only be disposed of by courts of equity."

We think, for the reasons and upon the authorities herein stated, that the court erred in permitting the intervention of the defendant, Williamson, and in permitting him to pay the money into court, to take the note from the possession of Goodrich, and be discharged from further liability, and that the order of the court so discharging Williamson should be reversed, and that the intervention of the Oklahoma National Bank should be dismissed, and judgment entered for the amount of principal and interest found to be due upon the note sued upon at this time. It is so ordered. All the justices concur, except BURWELL, J., who was of counsel, not sitting.

On Petition for Rehearing.

(Feb. 8, 1901.)

*

*

A rehearing has been allowed by the court in this cause upon rule No. 19, which provides that: "An application for a rehearing of any cause shall particularly set forth the grounds thereof and showing either that some question decisive of the case and duly submitted by counsel has been overlooked by the court, or that the decision is in conflict with an express statute or controlling decision, to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court. Upon this rule the defendant in error proceeds to reargue the question of the right of a party to intervene, under the circumstances of this case, for the purpose of setting up an equitable claim to the matter in litigation; and it is now argued that there are two lines of decisions, one of which is represented by the courts of New York, Missouri, and Wisconsin, while the other is upheld by the courts of Indiana, California, Iowa, and Kansas; and the defendant proceeds to restate Summers v. Hutson, 48 Ind. 228; Stich v. Goldner, 38 Cal. 608; Taylor v. Adair, 22 Iowa, 279; and Ludes v. Hood, 29 Kan. 49. Ludes v. Hood. 29 Kan. 49, was cited in the original brief of defendant in error, and expressly treated in

the opinion of the court. Summers v. Hutson, 48 Ind. 228, was presented in the original brief of the defendant in error, and considered by the court. It was a case in which A. placed personal property in the hands of B., as his agent, to sell, and in which B., having sold the property to C., wrongfully took for it a note, not governed by the law merchant, to himself or to D. The note was assigned by the payee to an innocent assignee for a valuable consideration. The assignee of the note brought suit against the maker. A. was permitted in that action to show that he was the legal owner of the note; that the property, after it had been given, was his property, and that he had the right to be substituted to the rights and interests claimed by the assignee, and to recover on that note. It was a case in which A. was the legal owner of the note. The cases of Stich v. Goldner, 38 Cal. 608, and Taylor v. Adair, 22 Iowa, 279, are somewhat similar upon the facts to Ludes v. Hood, in the former of which the intervener was "the rightful owner of the note," and in the latter of which the intervener was "the equitable owner" of the promissory note sued upon. The other citation is not calculated to aid the court here in the correct solution of the question presented to us in the case at bar, since the statutes of intervention of the states of California and Iowa, which regulate the subject of intervention, provide that: "Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both, may become a party to an action between other persons, either by joining the plaintiff in claiming what is sought by the petition, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and defendant, either before or after the issue has been joined in the cause, and before the trial commences." Pom. Rem. & Rem. Rights, par. 413. It will be seen that the statutes upon which these authorities cited upon the application for rehearing are founded are totally dissimilar to those upon which the solution of the questions proposed here depend. Upon the ground, however, that the decision heretofore made is in conflict with a "controlling decision, to which the attention of the court was not called," or "which has been overlooked by" it, it is contended that the determination of the supreme court of Kansas in Gerson v. Hanson, 34 Kan. 590, is controlling, since it is an interpretation of the statutes of Kansas relating to new parties before the Code of Civil Procedure of Kansas was adopted as the law of this territory. In this case Wilson had an attachment against Lightbody. The attachment undertaking was executed by Wilson as principal and Hanson and others as sureties. The attachment failed. Gerson, the assignee of Lightbody, brought suit on the attachment bond against Hanson and Lehman, omitting to make Wil

son a party defendant. Hanson and Lehman applied to the court to have Wilson brought in as a party defendant, and Wilson also filed his application to be made a party defendant, each of these applications setting up that Wilson had obtained a personal judgment in the attachment case against Lightbody, and that the amount of that judgment would be a proper subject of offset by Wilson against the claim of Gerson. Manifestly, Hanson, the assignee of Lightbody, had, on that account, omitted to make Wilson a party defendant in the suit on the attachment undertaking, and he accordingly resisted the application of Wilson and his sureties to have Wilson made a party defendant in that action. Since the action was upon an attachment bond, upon which Wilson was principal, and the controversy was one in which his interest, in so far as it was not only iden tical with that of Hanson and others, as against the plaintiff was one in which his liability was prior to theirs, he had, as provided in section 36 of the Code, "an interest in the controversy adverse to the plaintiff, and was a necessary party to a complete determination or settlement of the question involved therein." And the question was one in which, under section 41 of the Code, the determination of the controversy between the parties could be had "without prejudice to the rights of others or by saving their rights"; and the court properly permitted them to be brought in. In the case here considered Gerson could have sued and ought to have sued Wilson, because he was a party to the attachment undertaking sued upon. It expressly appeared in the case that Lightbody was insolvent. The case came expressly under sections 36 and 41 of the Code of Civil Procedure, but there is no analogy in the case to the case now being considered. In addition to the authorities heretofore cited upon the proposition upon the right of intervention, it was said in Cosgriff v. Savings Institution (Sup.) 52 N. Y. Supp. 189, that "the rule is well settled that the plaintiff in an action at law that seeks nothing but a money judgment cannot be compelled to bring in other parties than those he has chosen to make defendants." And it was said in Wescott v. Patton, 10 Colo. App. 544, 51 Pac. 1021, that "in a suit upon a promissory note by an assignee of the note a judgment creditor of the payee of the note has no such interest in the matter in litigation as to entitle him to intervene on the ground that the payee was insolvent, and transferred the note to the plaintiff without consideration, and for the purpose of hindering and defrauding his creditors." And it is said in Pom. Rem. & Rem. Rights, § 424, that: "The occasions on which a third person may intervene in a pending action are very few. The scope of the provision is exceedingly limited. It has been said that its operation is confined to those cases in which a bill of interpleader would have been permitted under the former

practice to accomplish the same end. It is certain that the right to intervene can only be exercised in actions for the recovery of real or personal property. It does not exist, therefore, in an action to recover money."

The proposition that E. W. Dowden and M. I. Dowden were necessary parties to the action is also averred in the petition for rehearing to be erroneous upon all the authorities. No "express statute or controlling decision to which the attention of the court was not called, either in brief or oral argument, or which has been overlooked by the court," has been cited, nor has the "question, statute, or decision so overlooked" been distinctly stated in the petition. A number of cases have been cited upon the proposition, which were contained in the original brief. It is said in Pom. Rem. & Rem. Rights, § 347, that: "In an action by a judgment creditor to reach the equitable assets of the debtor in his own hands, or to reach property which has been transferred to other persons, or property which is held by other persons under such a state of facts that the equitable ownership is vested in the debtor, the judgment debtor is himself an indispensable party defendant, and the suit cannot be carried to final judgment without him." And it is again said by the same author in section 350 that: "In an action brought by or on behalf of a judgment creditor to reach a fund in the hands of an express trustee for the debtor, such debtor is a necessary defendant, and should be joined with the trustee. He is the person directly interested in the fund, and the one to be directly affected by the judgment." Wait, Fraud. Conv. § 129; Bank v. Lancheimer (Ala.) 14 South. 776; Child v. Brace, 4 Paige, 309; Beck v. Burdett, 1 Paige, 305.

The question now remains touching the extent of the liability of T. W. Williamson; and section 4615, St. Okl. 1893, is cited as a statute to which the attention of the court has not hitherto been referred, as sustaining the contention that the extent of Williamson's liability ought to have been determined upon the order of the district court by which he was, on the 9th day of April, 1897, ordered to pay the amount then due upon the note sued upon by Goodrich into court. The statute reads as follows: "When there is no execution outstanding, the clerk of the court in which the judgment was rendered may receive the amount of the judgment and costs, and receipt therefor, with the same effect as if the same had been paid off to the sheriff on an execution; and the clerk shall be liable to be amerced for refusing to pay the same to the party entitled thereto, when requested, and shall also be liable on his official bond." The finding of the district court was that Williamson was indebted upon the note in the sum of $5,000 principal and $650 interest accrued prior to the 29th of March, 1897, which was the date of the filing of his affidavit and application, which was, in ef

fect, an answer admitting his liability to that extent, and asking permission to be permitted to pay that amount into court, and be discharged from further liability. And the judgment of the court thereupon was that he should pay in the sums of principal and interest and costs which had accrued up to that time, and he should be thereafter discharged and relieved from all other and further liability to either Goodrich or the Oklahoma National Bank. The action thus taken by Williamson by his "affidavit," which was, in effect, an answer and an admission of liability to the extent of the indebtedness due upon the note sued upon, cleared the way for the order of the court as against him, which was, in effect, a final judgment as to him. He was the defendant in the cause. The action was brought against him, and, but for the intervention of the Oklahoma National Bank, it was such an admission as would have finally determined the case. There is no evidence of any collusion between Williamson and the Oklahoma National Bank by reason of which the bank became an intervener in the action. It is true that it was not a full determination of all the issues which have been brought into the case, but it was a determination of the issues which were involved in the case as against him, and the further procrastination of the cause, by which Goodrich has been delayed in obtaining possession of his money, has resulted from the delays caused by the intervention of the Oklahoma National Bank. It is the opinion of the court that Williamson's liability should be finally determined by the order of discharge made in the district court. by which he was "discharged and relieved from all other and further liability to either of said parties." All the justices concur, except BURWELL, J., who was of counsel, not sitting.

(38 Or. 522)

WILLIS v. CRAWFORD. (Supreme Court of Oregon. March 4, 1901.)

ATTORNEYS-JOINT PROSECUTION OF SUITSPECIAL PARTNERSHIP-ACCOUNTING-EVIDENCE- SUFFICIENCY - EQUITY JURISDICTION-ADEQUATE REMEDY AT LAW.

1. N. employed plaintiff and defendant, who were not partners, as his attorneys in the prosecution of several suits, the costs and expenses of which were paid by N. Plaintiff alleged that defendant had misrepresented the amount of fees he received from Ñ., and fraudulently retained more than his share. Held, that the joint service of plaintiff and defendant in preparing and prosecuting the suits did not establish such a special partnership between them as would give equity jurisdiction of the action.