2 and tell stories of whom he pleases, but they only are defendants against whom process is prayed." It has, however, been held that the omission in the prayer of process of the name of a defendant otherwise sufficiently described in the bill is waived by his general appearance, and that no other defendant can take advantage of the defect. If a party is sought to be sued in both his individual and a representative capacity, process should be asked against him in both capacities. Otherwise, it seems, that he would be held to be a party only in that capacity in which he was therein referred to, even though in the subpoena and in the introduction to the bill he were named as a defendant in both capacities. If process be prayed against a defendant in a representative capacity and the subpoena be issued against him generally, the bill is not demurrable.5 The proper remedy is a motion to set aside the subpoena. A bill without a prayer of process is demurrable. 1 § 86. The Signature to a Bill. Every bill shall contain the signature of counsel annexed to it, which shall be considered as an affirmation on his part that, upon the instructions given to him and the case laid before him, there is good ground for the suit in the manner in which it is framed." This practice began, it is said, in the time of Sir Thomas More. Before that time it was the practice for a master in chancery to examine the bill and determine whether it was better to dismiss it originally or retain it by subpoena. A signature upon the back of the bill has been. held to be sufficient. The remedy for a defect in this respect is by a motion to take the bill off the file, or by demurrer. The court may of its own motion order the bill taken off the file.7 Leave to amend by adding the signature is always granted. If the defendant should answer without taking the Blatchf. C. C. 11; Buerk v. Imhaeuser, 8 2 Lord Chancellor Parker in Fawkes v. Pratt, 1 P. Wms. 593. 3 Buerk v. Imhaeuser, 8 Fed. R. 457. Carter v. Ingraham, 43 Ala. 78. But see Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 247. 21 Hargrave's Law Tracts, 802; Daniell's Ch. Pr. (2d Am. ed.) 357. 8 1 Hargrave's Law Tracts, 302; Daniell's Ch. Pr. (2d Am. ed.) 357. 104. 4 Dwight v. Humphreys, 3 McLean, 5 Dillon v. Francis, 1 Dickens, 68. Kirkley v. Burton, 5 Madd. 378; 5 Walton v. Herbert, 8 Green, Ch. (N. Dwight v. Humphreys, 3 McLean, 104. J.) 73. 6 Elmendorf v. Delancey, 1 Hopkins (N. Y.), 555. 7 French v. Dear, 5 Ves. 547. 8 Kirkley ". Burton, 5 Madd. 378; Dwight v. Humphreys, 3 McLean, 104. § 86. 1 Rule 24. objection, such a defect would probably be held waived. If the complainant sued in person, the signature of counsel would probably be dispensed with 10 A bill is also usually signed by the solicitor, who may be the same person as the counsel, but need not be signed by the plaintiff unless he sue in person. § 87. Affidavits to Bills. An affidavit must be annexed to the bill in the following cases and no others, although a superfluous affidavit will not make the bill bad: 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, must 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, must be supported by an affidavit stating the reasons which render such a proceeding necessary. 2 A bill of interpleader, and perhaps also a bill in the nature of an interpleader, should be supported by an affidavit by the plaintiff that he does not collude with either of the defendants; or if the plaintiff be a corporation, by one of its officers, that, to the best of his knowledge and belief, the plaintiff does not so collude.* Every bill brought by one or more stockholders in a corporation against the corporation and other parties, founded on rights which may properly be asserted by the corporation, must be verified under oath."5 Every bill which it is desired to use in support of a motion for a stay order, special injunction, substituted service, or other interlocutory application, other than one for a common injunction, must be accompanied by an affidavit verifying the bill itself or the substance of its allegations; but the affidavit need not be filed with the bill, nor before the notice of a motion for the interlocutory relief, and its omission does not make the bill demurrable. In the first three instances, where an affidavit is required, the defendant can only 66 ? See U. S. R. S. § 954. 10 See U. S. R. S. § 747; 1 Hoffman's Ch. Pr. 97. § 87.1 Walmsley v. Child, 1 Ves. Sen. 343; Whitfield v. Fausset, 1 Ves. Sen. 392; Story's Eq. Pl. §§ 313, 477; Daniell's Ch. Pr. (2d Am. ed.) 449, 450. 2 Philips v. Carew, 1 P. Wms. 117; Daniell's Ch. Pr. (2d Am. ed.) 452. VOL. I.- - 12 3 Metcalf v. Hervey, 1 Ves. Sen. 248. 4 Bignold v. Audland, 11 Simons, 23. 7 Hughes v. Northern Pac. Ry. Co., 18 Fed. R. 106, 110; Black . Henry E. Allen Co., 42 Fed. R. 618, 622. take advantage of the defect by demurrer. By plea or answer the omission will be waived.9 § 88. 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 made 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 different contracts.4 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.5 He may, however, thus obtain relief when different persons claim under assignments from the person to whom he first owed the debt. A bill of interpleader may be filed before or after proceedings at law have been begun against the complainant; but no injunction can be granted to restrain a proceeding already begun in a State court; 8 nor, according to the English rule, to stay proceedings in ejectment in any court.9 If a suit in equity have been already begun against the stakeholder, he might perhaps obtain relief by a petition therein; 10 but the more prudent course is for him to file a new bill. The fact that one of the conflicting claims is actionable at law and the other is purely equitable, will not deprive him of relief.12 The 8 Findlay v. Hinde, 1 Pet. 241, 244; Crosse v. Bedingfield, 12 Simons, 35; Daniell's Ch. Pr. (2d Am. ed.) 453. Findlay v. Hinde, 1 Pet. 241, 244; Crosse v. Bedingfield, 12 Simons, 35. § 88. 1 Mitford's Eq. Pl. ch. 1; Story's Eq. Pl. §§ 291-297; Daniell's Ch. Pr. (2d Am. ed.) ch. xxxii. 2 Killian v. Ebbinhaus, 110 U. S. 568; Langston v. Boylston, 2 Ves. Jr. 101; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.), 384. 3 Shaw v. Coster, 8 Paige (N. Y.), 339; Cochrane v. O'Brien, 2 Jones & La T. 380; Story's Eq. Pl. § 292. 4 Hoggart v. Cutts, 1 Cr. & Ph. 197; 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. 6 Cowtan v. Williams, 9 Ves. 107; Clarke v. Byne, 13 Ves. 386; Hoggart v. Cutts, 1 Cr. & Ph. 197, 205. 7 Richards v. Salter, 6 J. Ch. (N. Y.) 445. 8 U. S. R. S. § 720. 9 Metcalf v. Hervey, 1 Ves. Sen. 248. 10 Badeau v. Rogers, 2 Paige (N. Y.), 209. 11 Birch v. Corbin, 1 Cox Eq. 144. 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.13 The most common kind of interpleader suits at the present time are those brought by insurance companies against conflicting claimants to the proceeds of policies issued by them.14 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 defendants.15 The bill must be accompanied by an affidavit; which, when filed by a natural person, should be sworn to by him, and state that "this bill is not filed in collusion with either of the defendants named, but merely of his own accord for relief in this Honorable Court." 16 If a corporation be the complainant, one of its officers should make the affidavit, swearing that, to the best of his knowledge and belief, the corporation does not collude with either of the defendants.17 The omission of the affidavit is a ground for a demurrer.18 The bill should also conform to the provisions of the rules regulating original bills. No other step can be taken in the cause until after deposit in court of the fund or other property in dispute.19 It has, however, been held in England that a bill is not demurrable for the omission of an offer so to do.20 It is better practice to obtain an order ex parte permitting such payment,21 When that is done, an injunction. 13 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 Assurance Co. v. Thomas, L. R. 3 Ch. App. 74, 77. 17 Bignold v. Audland, 11 Simons, 23. 18 Metcalf v. Hervey, 1 Ves. Sen. 248; Tobin v. Wilson, 3 J. J. Marsh. (Ky.) 67 ; Mitford's Eq. Pl. ch. 1. 19 Meux v. Bell, 6 Simons, 175; Wil 14 Spring v. South Carolina Ins. Co., 8 liams v. Walker, 2 Richardson Eq. (S. C.) Wheat. 268. 16 Mitford's Eq. Pl. ch. 1; Story's Eq. Pl. §§ 291-297. 16 Metcalf v. Hervey, 1 Ves. Sen. 248. 291. 20 Meux v. Bell, 6 Simons, 175. 21 Williams v. Walker, 2 Richardson Eq. (S. C.) 291. 22 will be granted restraining the defendants from suing the plaintiff, and from continuing any action already begun touching the matter in dispute. The injunction is usually granted to take effect upon payment of the fund into court. Under special circumstances, however, a stay order might be granted until the complainant had an opportunity to do so.24 Upon an argument to dissolve this injunction before hearing, it seems that the defendants cannot contradict the affidavit that there is no collusion; 25 but a reference may be directed when such a charge is made, and at the hearing collusion may be shown.26 In England, a bill of interpleader can be successfuly maintained though all the defendants are beyond the jurisdiction of the court. Such suits are usually heard on bill and answers; although there is no reason why testimony should not be taken. If at the hearing the cause is ripe for a decision, the court will then decide the controversy between the defendants.28 If not, it will enter a decree dismissing the plaintiff with his costs, enjoining the defendants in accordance with the prayer of the bill, and directing them to interplead.29 If the claims on both sides are purely legal, an action or an issue at law will usually be directed. If one of them is of an equitable nature, and sometimes even when both are legal, a reference to a master is usually directed.30 At the hearing, each defendant may read the other's answer against him.31 If one of them has allowed the bill to be taken as confessed against him, this is considered as an admission that the bill was properly filed, and that he has made an improper claim against the fund.82 If, after answer, one of them defaults at the hearing, the court will enter a decree after hearing the other.33 22 Sieveking v. Behrens, 2 Myl. & Cr. 581. 23 Sieveking v. Behrens, 2 Myl. & Cr. 581. 28 Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570. 29 Daniell's Ch. Pr. (2d Am. ed.) 1765; 24 Sieveking v. Behrens, 2 Myl. & Cr. Angell v. Hadden, 16 Ves. 202; City 581; U. S. R. S. § 718. 25 Stevenson v. Anderson, 2 Ves. & B. 407; Manby v. Robinson, L. R. 4 Ch. App. 347; Fahie v. Lindsay, 8 Oreg. 474. 26 Manby v. Robinson, L. R. 4 Ch. App. 347; Langston v. Boylston, 2 Ves. Jr. 101; Dungey v. Angove, 2 Ves. Jr. 304. 27 Martinius v. Helmuth, G. Cooper, 248; Stevenson v. Anderson, 2 Ves. & B. 412. Contra, Herndon v. Ridgeway, 17 How. 424; and see § 96. Bank v. Bangs, 2 Paige (N. Y.), 570. 3) Daniell's Ch. Pr. 1765; Story's Eq. Jur. § 822; Angell v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570. 31 Bowyer v. Pritchard, 11 Price, 103; Daniell's Ch. Pr. 1765. 82 Badeau v. Rogers, 2 Paige (N. Y.), 209; Fairbrother v. Prattent, 1 Daniel, 64. 33 Hodges v. Smith, 1 Cox Eq. 357. |