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controversy, &c.-The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the recov ery of real or personal property, a person, not a party to the action but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment.

Interpleading.-A defendant against whom an action is pending upon a contract, or for specific, real, or personal property, may at any time before answer, upon affidavit that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person, and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order.

The amendments of 1851 are in italic.

This section is the controlling section in determining whether a demurrer for defect of parties is well taken or not. Mason, J., in Wallace v. Eaton, 5 Pr. R., 99, 102. See note to section 121 of this code.


The amendment is taken from the codifiers' report of 1850 (Civil Code, s. 613, 614), and they observe in a note that, "the object of this section is to save the necessity in most cases of an action to compel two parties claiming the same thing to settle the controversy between them by interpleading. The interpleader act in England was passed for the same purpose.' The statute referred to by the commissioners is the 1 & 2 William 4, cap. 58, which enacts in effect as follows. "That upon application made by or on behalf of any defendant, after declaration and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who is sued or who expects to be sued for the same, and that such defendant does not, in any manner collude with such third party, but is ready to bring into court, or to pay or dispose of, the subject matter of the action in such manner as the court (or any judge thereof) may order or direct, it shall be lawful for the court, or any judge thereof, to make rules and orders calling upon such third party to appear and state the nature and particulars of his claim, and maintain or relinquish his claim; and upon such rule or order to hear the allegations as well of such third party as of the plaintiff; and in the meantime to stay the proceedings in such action; and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues; and also to direct which of the parties shall be plaintiff or defendant on such trial; or, with the consent of the plaintiff and such third party, their counsel or attorneys, to

dispose of the merits of their claims and determine the same in a summary manner; and to make such other rules and order therein, as to costs and all other matters, as may appear to be just and reasonable."

The object of this statute, says Mr. Chitty, is to give relief without compelling the party seeking it to have recourse to a bill of interpleader. The act does not take away the right of a party to file a bill of interpleader, for the remedy is merely concurrent. Chitty's Genl. Pr., vol. 2, p. 345. With reference to the persons entitled to the benefit of the act, a party who by his own act is placed in a position to be sued, cannot call upon the court to substitute another defendant in his stead. 9 Bing, 82; and a defendant who is sued for the recovery of property in his possession, in which he has no interest, but which is claimed by a third party, cannot apply to be relieved under the statute against the claim of the plaintiff and such third party, if he has an indemnity from the claimant. Tucker v. Morris, 1 C. and M., 73, S. C., 1 Dowl. 639. A lien, however, attaching upon the goods in dispute, and which must be satisfied by the party who ultimately turns out to be entitled to them, does not prevent the party who holds the goods from applying to the court for relief. Cotter v. Bank of England, 3 Mo. & S. 180, S. C. 2 Dowl., 728. But the case of a wharfinger who claims a lien on goods for wharfage, &c., which attaches only on one of the parties by whom the goods are claimed, is not within the act 2 Mo. & S., 131; 9 Bing., 84. Goods consigned to A. and warehoused in the London docks, were claimed by B. The dock company refused to deliver them to A. without an indemnity, whereupon A. brought trover, with counts for special damage for the detention. The company applied for relief under this act, and it was granted to them. Lucas v. London Dock Co., 4 B., Ad. 378. The court cannot relieve a stakeholder until action brought against him, and declaration; but if acting in good faith he will be allowed his costs out of the fund in court. Parker v. Linnett, 2 Dowl. 562. Where a party is sued in two courts, he must obtain interpleader orders in both. Allen v. Gilby, 3 Dowl. 143. If the parties do not appear to oppose the making of the order, there must be an affidavit of the service of notice, &c., upon them, and the court will make the order in their absence. Jervis's Rules, p. 40.

Where the plaintiff sold to the defendant goods of a party deceased, to whom a third party afterwards took administration and claimed the price, held that it was not a case within the act; but the ground of refusal to pay to the plaintiff was to be shown by plea. James v. Pritchard, 8 Dowl., 890; 7 Mees. & W., 216

Where the defendant advertised a reward for information leading to the discovery of a felony, and several parties, having given information more or less material, claimed the reward, held not a case within the statute. Gay v. Whitman, 5 Sc., 795.

Where the defendant was liable to pay purchase money to one or other of two parties, held, that it being a matter of interest to him to know to whom he was to pay, it could not be said that he did not claim any interest in the subject-matter of the suit, and that it was not a case within the act. Newton v. Moody, 7 Dowl., 582.

Where the depository claimed a personal interest in part of the fund claimed by one of the claimants; held, that it was not a subject of an interpleading order. Moore v. Usher, 7 Sim 384.

So where he had by admission given to one against him in respect of the subject of claim. Confirmed on appeal, 2 Myl. & Cr. 1, and see affirmed on appeal, 2 Ross. & M. 606.

of the claimants a right of action Crawshay v. Thornton, 7 Sim. 391. Pearson v. Cardon, 4 Sim. 218; and

Where the adverse claim was set up in respect of money due on a contract for work and labor, held that the act did not apply. Turner v. Kendall, Mayor of, 2 Dowl. and L., 197; 13 Mees. & W., 171.

A purchaser cannot call upon his vendor to interplead with a third party, claiming to be the owner of the goods sold, although the one is suing for the price and the other to recover the goods in trover, such being a case to which the statute does not apply. Slaney v. Sidney, 14 Mees. & W., 800; 3 Dowl. & L., 250.

The rule refused at the instance of a stake-holder of money on an illegal wager. Applegarth v. Colley, 2 Dowl. N. S., 223. Where a party, seeking relief, has given to any other of the litigant parties a right against himself independent of the property in dispute, held not a case within the act; held also that the court had no right to bar the claim of a foreigner residing abroad. Patorni v. Campbell, 3 Dowl. N. S., 397 ; 12 Mees. & W., 277. Where the goods were consigned for sale by A. to his factor,

who sold them to the defendant, and upon the factor becoming bankrupt, the price was claimed by A., and also by the assignees,-held that the purchaser was entitled to the rule of interpleader. Johnson v. Shaw, 4 Mann. & Gr., 916.

Where the defendant had purchased cattle of the plaintiff, and sent a bill accepted in blank for the drawer's name for the payment, which came into the hands of third parties for valuable consideration, the plaintiff denied that it had ever been received or indorsed by him, and he had commenced an action for the price of the cattle; the holder of the bill also threatening proceedings on it against the defendant: held, that it not being shown that the cross claims were on the same subject matter, and the defendant might be liable to one or other of the parties, it was not a case within the act. Farr v, Ward, 2 Mees. & W., 844.

Under this statute it was held, that the court would not grant an interpleader order on the ground that the claimant set up a right of action against the defendant in respect of the same subject matter, where it appeared that the plaintiff's claim against the defendant rested not merely upon the right of property, but also on the personal contract of the defendant. Lindsay v. Barrow, 6 C. B., 291. Thus, where A., professing to act as agent of B., obtained from C. an advance of money upon the security of plate in A.'s possession belonging to B., after A.'s death Č. brought detinue for the plate against his executors. B. also demanded it of the executors. It was held not a case for an interpleader order. Ib.

At common law, the courts would in general protect their own officers when acting bona fide in executing the process of the court (as a sheriff acting in obedience to a writ of fieri facias) from the risk of liability to two different claimants, as where he had seized goods under a writ of fi. fa., provided he applied to the court as soon as he found himself in peril; as if upon such seizure he had notice that the party whose goods he had taken had committed an act of bankruptcy, and that assignees claimed the property, as there was a reasonable doubt whether the goods were not liable to an extent of the crown, the court would enlarge the time for returning the writ, when ruled by the plaintiff to do so, until he or the assignees had indemnified him, or had inter se settled their mutual claims, and would compel the adverso elaimant to try the right, whilst the proceeding against the sheriff or officer was suspended, or upon the terms of his bringing the proceeds into court to abide the result. At common law this was the only mode of relief to the sheriff who had seized the goods in settlement; for he could not file a bill of interpleader, because, as observed by Lord Eldon," a person cannot file a bill of interpleader who was obliged to put his case upon this, that as to some of the parties he might be a wrong-doer, as by the seizure and temporary detention of the goods." Slingsby v. Boulton, 1 Ves. and B., 334. For the same reason the court of king's bench in England on the motion of an auctioneer who had, before notice of any third person's claim, sold under an execution by the direction of the sheriff, gave him leave to bring the proceeds into court, with a stay of actions against him. Chitty's Gen. Pr., 218, 341; and see note to section 391 of this code.

Where an issue has been directed by the court to try the right of contending parties to the property in question, and the intermediate party has paid money into court to abide the event of the issue, the successful party cannot move to have the money paid out to him until final judgment has been signed. Cooper v. Lead Smelting Co., 9 Bing., 634; 2 Mo. and S., 810; S. C., 1 Dowl., 728.

To entitle a party to interplead, he must admit a right in two claimants, and also show two claimants in existence capable of interpleading. Browning v. Watkins, 10 Sme. and M., 482. Therefore, the complainant in a bill of interpleader cannot after the filing of the bill set up a right in himself to the fund in controversy. An. derson v. Wilkinson, 10 Sme. and M., 601.

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§ 123. [103.] (Amended 1849.) Actions to be tried where subject matter situated.-Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial, in the cases provided by statute:

1. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property;

2. For the partition of real property;

3. For the foreclosure of a mortgage of real property;

4. For the recovery of personal property distrained for any cause;

This section and section 124 together, compose section 103 of the code of 1848. Under section 103 of the code of 1848, in an action brought to foreclose a mortgage, it appeared that the mortgaged premises were in the county of Cortland. That the money was loaned in the county of Columbia, where the mortgage, after being recorded was delivered to the mortgagee. The county of Columbia was designated in the complaint as the place of trial. Before the time of answering expired, defendant served a written demand that the trial be had in Cortland. Plaintiff's attorneys, in reply, served a notice on defendant's attorney, insisting that Columbia was the proper county in which to try the action, and saying they should notice the cause for trial in that county. Defendant then moved to change the place of trial from Columbia to Cortland, and Mr. Justice Parker in granting the motion, said:

"The question is, which is the proper county for the trial of this action, under s. 103 [123] of the code? Plaintiff's counsel insists that he has a right to designate, as the place of trial, either the county where the cause of action arose, or that in which the subject thereof is situated. Counsel for defendant urges that the action being made local, but one county for each action could have been intended. The section to which a construction must be given, is 103 [123].

"If that means that, in an action for a foreclosure of a mortgage, the plaintiff is at liberty to select, as the place of trial, either in the county where the cause of action arose, or another in which the mortgaged premises are situated, then the s. 105 [126], becomes entirely inoperative and useless. Section 105 [126], clearly contemplates but "one proper county" for each of the actions mentioned in section 103, [123]. Any other construction would lead to confusion and embarrassment, as it has done in this case, by leaving it doubtful which is the proper county for trial."

"If the plaintiff is right in his construction, then an action to recover real property is no longer local, and it may, with as much propriety, be said that the cause of action in the ejectment arose in the county where the plaintiff became invested with the title, as that in this case, the cause of action arose in the county where the money was loaned.

"It is not necessary, in construing s. 103, [123], to hold that in each action mentioned in the subdivisions, the plaintiff is at liberty to select either as he pleases, the county where the cause of action arose, or that where the subject of the action is situated. Full effect is given to the language of that section, by holding that either the one or the other shall be made the test, according to the applicability of the test itself. And the question where the subject of the action arose would seem to be more particularly applicable to the first three subdivisions, and the other test to the remainder. Such was the law before the adoption of the code.

"But, whatever may be the true construction of this section, I am not satisfied that the cause of action arose in Columbia because the money was loaned there. That would certainly be the case in the action on the bond alone; but where the plaintiff seeks to foreclose the mortgage, the loan of the money must be considered in connection with the lien on the land; and the cause of action cannot be complete without a lien in Cortland county.

"I think Cortland county should have been designated by the plaintiff as the place of trial." Miller v. Hall, 1 Code Rep. 113.

Where a complaint among other things prayed, that the right of the defendant to the land in question in the action, might be adjudged to be subordinate to the right of the plaintiff, and that the defendant might be ordered to give up the possession of the said land, Edwards, J., said, I think this is a case within the latter clause of section 123, subd. 1, of the code. Mairs v. Ramsen, 3 Code Rep. 138.

§ 124. [104.] (Amended 1849.) Actions to be be tried where cause of action arose.-Actions for the following causes must be tried in the county where the cause or some part thereof arose, subject to the like power of the court, to change the place of trial in the cases provided by statute:

1. For the recovery of a penalty or forfeiture imposed by statute; except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed;

2. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, shall do any thing touching the duties of such officer.

This section and the preceding (section 123) are taken verbatim from section 103 of the code of 1848.

These actions were made local by the revised statutes, 2 R. S., 2d ed 395, s. 8, 9, ib., 277, s. 28; ib., 330. s. 3. Under the revised statutes (2 R. S., 277, s. 28), of which this section is nearly a literal transcript, it was held that the provisions respecting actions against officers applied only to affirmative acts, and not to mere omission or neglect of official duty. 13 Wend., 35, 266.

The last mentioned provision of the revised statutes, is amended by the laws of 1843, p. 257, cap. 201, by adding thereto the following proviso: Provided, however, that actions brought by the county or town officers of one county in their official capacity, against the county or town officers of another county in their official capacity, shall be laid in some county adjoining the county of the defendants, except the county of the plaintiffs.

The revised statutes (2 R. S., 330, sec. 2, sub. 3), provide that for the purposes of a fair and impartial trial, the court may order the issues to be tried in some other County, when it appears that a fair and impartial trial cannot be had in the county in which the venue is laid; and by sec. 3, it is provided, that in actions against

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