for a defect in this respect was by a motion to take the bill off the file, or by demurrer." The remedy would now probably be a motion to dismiss. The court could, of its own motion, order the bill taken off the file.9 If the defendant should answer without taking the objection, such a defect would probably be waived.10 Leave to amend by adding the signature was always granted.11 If the complainant sues in person, the signature of the solicitor might also be dispensed with. 12 In such a case, the plaintiff himself should sign the bill.

§ 156. Affidavits to bills. The Equity Rules of November 4, 1912, contain but two provisions requiring an oath to a bill. A stockholders' bill must be verified by oath. In every case, "If special relief pending the suit be desired the bill should be verified by the oath of the plaintiff, or someone having knowledge of the facts upon which such relief is asked." Under the former practice, in such a case it was not necessary that the affidavit should be filed with the bill, nor before the notice of a motion for the interlocutory relief, and its omission did not make the bill demurrable. It has been held: that under the Equity Rules of 1912 where the bill prays for a preliminary injunction it must be verified regardless of whether the complainant moves for such relief; and that when verified by the complainant it must show that the affiant has knowledge of the facts alleged. It is doubtful whether, when an affidavit is required, one is sufficient which merely alleges that the bill is true to the best of the affiant's knowledge, information and belief.6

6 Dillon v. Francis, 1 Dickens, 68. 7 Kirkley v. Burton, 5 Madd. 378; Dwight v. Humphreys, 3 McLean, 104.

See Eq. Rule 29.

9 French v. Dear, 5 Ves. 547. 10 See U. S. R. S., § 954.

11 Kirkley v. Burton, 5 Madd. 378; Dwight v. Humphreys, 3 McLean, 104.

12 See U. S. R. S., § 747; 1 Hoffman's Ch. Pr. 97.

§ 156. 1 Eq. Rule 27.

2 Eq. Rule 25.

3 Hughes v. Northern Pac. Ry. Co., 122 Ala. 409, 25 So. 169, 910. Henry E. Allen Co., 9 L.R.A. 433, 42 Fed. 618, 622; Cobb v. Clough, 83 Fed. 604.

4 Scheuerle v. Onepiece Bifocal Lens Co., 241 Fed. 270. 5 Ibid.

6 Burgess v. Martin, 111 Ala. 636, 20 S. 506; Pollard v. So. Fertilizer Co., 122 Ala. 409, 25 So. 169, 910.

The former practice further required that an affidavit be annexed to the bill in the following cases: A bill to obtain the benefit of an instrument upon which an action at law would lie, were it not either lost or out of the possession of the complainant and believed to be in that of the defendant, had to be supported by an affidavit of those facts which are necessary to give the court jurisdiction. A bill to perpetuate the testimony of witnesses, or to take testimony de bene esse, had to be supported by an affidavit stating the reasons which render such, a proceeding necessary. A bill of interpleader, and perhaps also a bill in the nature of an interpleader, had to be supported by an affidavit by the plaintiff that he does not collude with either of the defendants; or if the plaintiff were a corporation by one of its officers, that, to the best of his knowledge and belief, the plaintiff does not so collude.10

9

§ 157. Bills of interpleader. A bill of interpleader is a petition filed by a disinterested person holding a fund or thing to which two or more who are defendants set up conflicting claims, between whom he cannot decide without incurring the risk, if he delivers the property to one, of being finally obliged to pay the other damages for having done so. It can only be filed by one who claims no interest in the property in question, and who seeks no other relief than leave to deposit it in the care of the court, and be relieved from all danger of further vexation concerning the same.2

The conflicting claims must be doubtful.

The claimants must

seek the same thing, not merely the same amounts under 'dif

iell's Ch. Pr. (2d Am. ed.) ch.

XXXII.

2 Killian v. Ebbinhaus, 110 U. S. 568, 28 L. ed. 246; Langston v. Boylston, 2 Ves. Jr. 101; Mohawk & Hudson R. R. Co. v. Chute, 4 Paige (N. Y.), 384; Jackson & Sharp Co. v. Pearson, 60 Fed: 113 123. See Montgomery v. Philadelphia, 253 Fed. 473.

3 Shaw v. Coster, 8 Paige (N. Y.) 339, 35 Am. Dec. 690; Cochrane v. O'Brien, 2 Jones & La T. 380; Story's Eq. Pl., § 292.

5

ferent contracts. A tenant or agent may not, by filing such a bill, dispute the title of his lessor or principal when a demand is made upon him, by a stranger claiming under title paramount; nor can he thus compel an interpleader of two adverse claimants from whom he has taken independent leases of the same property. He may, however, thus obtain relief when different persons claim under assignments from the person to whom he first owed the debt," or when there is a dispute between the principal and a stranger concerning an assignment, which the latter claims the former made to him. A licensee, in an action by his licensor for royalties, cannot interplead a third person who claims an interest in the patent.

A bill of interpleader may be filed before or after proceedings at law have been begun against the complainant; injunction can be granted to restrain a proceeding already begun in a State court; 11 nor, according to the English rule, to stay proceedings in ejectment in any court.12 If a suit in equity has been already begun against the stakeholder, he may perhaps obtain relief by a petition therein; 13 but the more prudent course is for him to file a new bill.14

The fact that one of the conflicting claims is actionable at law and the other is purely equitable, will not deprive him of relief.15 The enactment of a State statute giving similar relief upon motion by the defendant to an action at law, does not deprive equity of its original jurisdiction.16 It has been held that where the United States sues upon a bond, in the

:

4 Hoggart v. Cutts, 1 Cr. & Ph. 187; Story's Eq. Pl., § 293.

5 Dungey v. Angove, 2 Ves. Jr. 304, 310; Lowe v. Richardson, 3 Madd. 277; Story's Eq. Pl., § 295. But it has been held that a lessee might obtain such relief by a crossbill. Robinson v. Brast, C. C. A., 149 Fed. 149.

6 Standley v. Roberts, 59 Fed. 836.

7 Cowtan v. Williams, 9 Ves. 107; Clarke v. Byne, 13 Ves. 386; Hoggart v. Cutts, 1 Cr. & Ph. 197, 205.

8 Hayward & Clark v. McDonald, C. C. A., 192 Fed. 890.

9 Pusey & Jones Co. v. Miller, 61 Fed. 401.

10 Richards v. Salter, 6 J. Ch. (N. Y.) 445.

11 U. S. R. S., § 720.

12 Metcalf v. Hervey, 1 Ves. Sen. 248.

13 Badeau v. Rogers, 2 Paige (N. Y.) 209.

14 Birch v. Corbin, 1 Cox Eq. 144. 15 Richards v. Salter, 6 J. Ch. (N. Y.) 445.

16 Barry v. Mutual Life Ins. Co., 53 N. Y. 536; Wood v. Swift, 81 N. Y. 31, 35; Board of Education v. Scoville, 13 Kan. 17, 30; Prudential

absence of statute, the defendant cannot bring in by interpleader the persons who might be entitled to participate in the recovery.17 The courts sustained a bill of interpleader filed by a bank against a depositor and the Custodian of Alien Property, when the latter claimed that the deposit was owned by an alien enemy.18 A bill of interpleader may be filed by a person who has offered a reward which is claimed by different parties.19 Formerly bills of interpleader were often filed by insurance companies against conflicting claimants to the proceeds of policies issued by them.20

Such bills are now regulated by statute, as follows: "The district court of the United States shall have original cognizance to entertain suits in equity begun by bills of interpleader where the same are filled by any insurance company or fraternal beneficiary society, duly verified, and where it is made to appear by such bill that one or more persons, being bona fide claimants against such company or society, reside within the jurisdiction of said court; that such company or society has made or issued some policy of insurance or certificate of membership providing for the payment of a sum of money of at least $500 as insurance or benefits to a beneficiary or beneficiaries or to the heirs, next of kin, or legal representative of the person insured or member; that two or more adverse claimants, citizens of different States, are claiming or may claim to be entitled to such insurance or benefits and that such company or society deposits the amount of such insurance or benefits with the clerk of said court and abide the judgment of said court. In all such cases the court shall have the power to issue its process for said claimants, returnable at such time as the said court or a judge thereof shall determine, which shall be addressed to and served by the United States marshals for the respective districts wherein said claimants reside or may be found; to hear said bill of interpleader and decide thereon according to the practice in equity; to discharge said complainant

Assurance Co. v. Thomas, L. R. 3
Ch. App. 74, 77.

17 U. S. v. U. S. Fidelity & Guaranty Co., C. C. A., 242 Fed. 16.

18 Amer. Exchange Nat. Bank v. Palmer, 256 Fed. 680.

19 Taft v. Hyatt (Kansas), 180 Pac. 213; Statesman Pub. Co. v. Foltin (Oregon), 167 Pac. 782 (a prize for solving a puzzle).

20 Spring v. South Carolina Ins. Co., 8 Wheat. 268, 5 L. ed. 614.

from further liability upon the payment of said insurance or benefit as directed by the court, less complainant's actual court costs; and shall have the power to make such orders and decrees as may be suitable and proper and to issue the necessary writs usual and customary in such cases for the purpose of carrying out such orders and decrees: Provided, That in all cases where a beneficiary or beneficiaries are named in the policy of insurance or certificate of membership or where the same has been assigned and written notice thereof shall have been given to the insurance company or fraternal benefit society, the bill of interpleader shall be filed in the district where the beneficiary or beneficiaries may reside."' 21

In cases not covered by the statute just quoted, it seems that in the Federal courts no bill can be maintained when either of the defendants cannot be served with process within the jurisdiction.22 Such a bill should be filed in the district of the residence of the beneficiary if he is named in the policy. Otherwise in the district of the residence of one of the claimants.23 If a suit is pending in which there is the requisite diversity of citizenship, the citizenship of the parties to the bill of interpleader is immaterial.24 A bill of interpleader should state the manner in which the plaintiff obtained possession of the property in question, and admit that he has no interest therein. It should set forth the claims of the defendants, showing that they conflict, and that he is ignorant of their respective rights, and cannot determine between them without hazard to himself. It should offer to deposit the fund or other property in the custody of the court; and conclude with a prayer that upon such deposit the defendants may be enjoined from further molesting him about the matter in question; that they be required to interplead and settle their respective rights among themselves; and that he may have his costs out of the fund, if there be one, otherwise from the defendant.20 25

21 Act of Feb'y 22, 1917. See H. 113, 39 St. at L. 929; Comp. St. § 991a. Supra, § 5.

22 Stockbridge v. Phoenix Mut. Life Ins. Co., 193 Fed. 558. See infra, § 166.

23 Pennsylvania Mut. Life Ins.

Co. v. Henderson, 244 Fed. 877.
See supra, § 61.

24 Sherman Nat. Bank v. Shubert Theatrical Co., C. C. A., 247 Fed. 256. Supra, § 51.

25 Mitford's Eq. Pl., ch. 1; Story's Eq. Pl., §§ 291-297.