1860. July Term. & Walton V. Brickey &als. on his part, which shall sufficiently account for the omission to seek its intervention before the judgment. If we turn to the elementary writers who speak of the bill Haseltine of interpleader, we find that they describe it as lying in cases where two or more persons are claiming the same thing under different titles, though derived from the same common source, or in separate interests from another person, who, not knowing to which of the claimants he ought of right to render the debt or duty claimed, or to deliver the property in his custody, applies to the court of equity to resolve his doubts and protect him from the damage of being compelled to pay the debt a second time. The terms in which they speak of the proper case for such a bill imply that the claim is for a thing in action and not yet passed in rem adjudicatum. Several claims are made for the same thing; he is molested by an action or actions brought against him, or threats of the same; he fears that he may suffer injury from the conflicting claims of the parties, and he therefore applies to the court to protect him not only from being compelled to pay or deliver the thing claimed to both claimants, but also from the vexation attending upon the suits which are or possibly may be instituted against him. Everything that enters into the description would seem to exclude the idea that the claimants had prosecuted their demands to judgment. See 2 Sto. Eq., § 806; Mit. Pl. 48 et seq.; Coop. Eq. Pl. 47 et seq.; Eden on Injunct. 335 et seq.; Sto. Eq. Pl., § 291; 3 Dan'l Ch. P. 1753, 1756. And in very much the same terms, with the same implication, will it be found that this proceeding is characterized by the learned judges in reported cases. See Dungey v. Angove, 2 Ves. Jr. R. 304, 310; Langston v. Boylston, 2 Ib. 107; Angel v. Hadden, 15 Ibid. 244; Hoggart v. Cutts, 1 Craig & Phil. 204; Glyn v. Duesbury, 11 Sim. R. 147; Sieveking v. Behrens, 2 Myl. & Craig 581; Richards v. Salter, 6 John. Ch. R. 445; Badeau 1860. July Term. & Walton V. Brickey & als. v. Rogers, 2 Paige's R. 209. And whilst I have as yet seen no clear authority for the proposition that the parHaseltine ty may delay his action until after judgments are recovered against him by the several claimants, several are to be found which are directly opposed to it. Thus, in 3 Dan'l Ch. Pr. 1753, it is laid down that a claim made upon a party affords ground for filing a bill of interpleader, though no legal proceedings have been actually commenced against him; and (at p. 1755) that a bill of interpleader ought to be filed before or immediately after the commencement of proceedings at law,and should not be delayed until after a verdict or judgment had been obtained. In Cornish v. Tanner, 1 Younge & Jer. 333, a bill of interpleader was filed after a verdict had been obtained by one of the claimants, and an injunction was granted on the money being paid into court. One of the defendants filed his answer, and moved the court to dissolve the injunction, and, although the other defendants had not filed their answers, the court dissolved the injunction because the plaintiff had failed to account satisfactorily for his delay in filing the bill. In Yarborough v. Thompson, 3 Smeedes & Marsh. 291, the controversy was (as in the case before the court) between an attaching creditor who had obtained judgment against the garnishee and the assignee of the note given by the latter, and who had sued upon the same and recovered judgment also. After the judgment had thus been recovered, the party came with his bill to compel the judgment creditors to interplead concerning their right to the debt which he owed. Held, that he came too late after judgment, and his bill was accordingly dismissed. This case is in all its circumstances like the case in judgment, and must be considered as authority directly in point. Judge Clayton, in declaring the opinion of the court, referred to a remark made by the judges who delivered the opinion in the case of Oldham v. Ledbetter, 1860. July Term. & Walton V. Brickey & als. 1 How. Miss. R. 43, 47, to the effect that the case put, (being one in which a judgment had been recovered,) the plaintiff might have protected himself by bill of in- Haseltine terpleader, and says that it was thrown out without sufficient consideration; that it was not a point for decision, and that the cases cited did not bear upon that proposition. In the case of the Union Bank of Maryland v. Kerr, &c., 2 Maryland Ch. Dec. 460, the bill was filed by the bank to compel the defendants, Kerr and Glenn, to interplead as well as to a sum of money for which Kerr had recovered judgment against the bank in an action of assumpsit, as also as to certain promissory notes and bills of exchange for which Kerr had commenced an action of trover which was still pending. It was held that the joinder of the subject of the action of assumpsit in the same bill with that of the action of trover could not preclude the complainant from the right to compel the defendants to interplead as to the latter, although as to the former they could not be required to interplead, because the bill was filed after the judgment had been obtained. In declaring his opinion, Chancellor Johnson states it as well settled doctrine, that a bill of interpleader must not be delayed until after a verdiet or judgment, and that such was conceded to be the rule by the counsel; and this is several times repeated in his opinion. It is true that, as an appeal had been taken from the judgment in the action of assumpsit, the party was put to his election to proceed with his appeal or in that court; but evidently the relief which the party was permitted to seek, if he abandoned his appeal, was not by way of requiring the defendants to interplead touching the subject of the action of assumpsit, as the right to do so had been expressly declared to be lost by reason of the delay until after judgment. The case of Hamilton v. Marks, 19 Eng. Law & Eq. R. 321, might seem at first view to be an authority the 1860. July Term. & Walton V. Brickey & als. other way, but upon examination it will be found that the general rule referred to is recognized, but the parHaseltine ticular case distinguished from those to which it applies. It was the case of conflicting claims to the proceeds of a policy of insurance on property damaged by fire. An action was brought in the Court of Exchequer by the party insured for compensation for the damages sustained, and a verdict was found for £700 damages in respect of the furniture, with liberty to move to increase the damages by a sum not exceeding £1,200 in respect of injury to the buildings. The party insured being insolvent, notice was given to the insurance office of several different claims to and liens upon the money, and the creditors' assignee of the estate of the insolvent having previously to the judgment given notice to the insurance office of his appointment, and desired the office not to pay the insolvent the moneys recoverable under the policy, the treasurer of the company filed a bill of interpleader. Objection was made that there had been a verdict in an action at law, and Cornish v. Tanner was relied on. The Vice-Chancellor, without questioning the authority of that case, said: "The present case differs from that. Here the dispute at law was confined to the question of demand, which could only be settled at law; and there is no rule of this court to preclude a defendant at law who has done that from obtaining relief on an interpleader suit." This case, then, as it seems to me, in no wise impugns the general rule applicable to cases in which not the mere amount due from the party holding the fund, and which must be ascertained at law, is in controversy, but also the rights of the conflicting claimants to demand the same and to appropriate it to their use by obtaining a personal judgment against the holder of the fund. Bills of interpleader may, it is true, on many occasions. be advantageously resorted to, but we are told that the court does not look very favorably upon them; and Lord Hardwicke expressed himself unwilling" to allow new inventions in the bringing of such bills." 1 Madd. Ch. 181; Metcalf v. Harvey, 1 Ves. R. 248. And I cannot but think that.where the existence of the debt or duty is admitted, and the amount fixed and ascertained, if there be conflicting claims to the proceeds on behalf of third persons claiming under the party to whom the debt or duty is due, between whom the party owing the same is unwilling to decide, it will be in better conformity to the analogies of the law and the rules of the court of equity to require the party seeking the protection of the court to come with his bill before the several claimants shall have carried their respective claims into personal judgments against himself, unless this delay be satisfactorily accounted for. And as in this case the party offered no excuse for failing to file his bill until after both the judgments were rendered against him, I think the court should have refused to interfere. I am of opinion therefore to reverse the decree. DANIEL and MONCURE, J8. concurred in the opinion of Lee, J. ALLEN, P. and ROBERTSON, J. dissented. DECREE REVERSED. 1860. July Term. Haseltine & Walton V. Brickey & als. |