In Long v. Burton,1 after the answer to the original bill had been reported insufficient, the defendant filed a cross-bill. The plaintiff in the original suit obtained an order, that the original bill should be answered before he answered the cross-bill, and on the answer being reported insufficient, he obtained an order to amend his bill, and that the defendant might answer the amendments and exceptions together. It was held that the order to amend was a waiver of the priority of suit.2

A plea was allowed to an original bill, then the defendant filed a cross-bill, to which an answer was put in, which was alleged to be insufficient. The plaintiff in the original suit then amended his bill, and the plaintiff in the cross-suit moved for time to answer the amended bill, after the defendant had answered the cross-bill. The motion was granted at the Rolls, and affirmed by the Lord Chancellor on the Master's report of insufficiency, which report was procured pending the motion.3

An original bill abated by the act of the plaintiff, and not revived until after a cross-bill filed, loses its priority.*

But the plaintiff in the original suit does not waive his priority by obtaining the common orders for time to answer the cross-bill.5

Although the plaintiff in the original suit is entitled to stay the proceedings in the cross-suit, until the defendant in the original suit has answered, the plaintiff in the cross-suit has not the same privilege, unless the original plaintiff by amending his bill loses his priority of suit.6

The plaintiff in the original suit is not obliged, in any case, to stay proceedings thereon upon the filing of a cross-bill, except by a special order of the Court, founded on notice of the application for delay, given to the plaintiff in the original suit. And it is not a matter of course for the Court to stay the proceedings in the original suit, in any case, except where the defendant in the crosssuit is in contempt for not answering.9

1 2 Atk. 218.

2 See 1 Smith Ch. Pr. (2d Am. ed.) 464.

3 Rattray v. Darley, 3 Atk. 724.

Smart v. Floyer, Dick. 260.

Harris v. Harris, 1 Turn. & Russ. 165; - v. Southall, 1 Younge, 330. 1 Smith Ch. Pr. (2d Am. ed.) 465; Williams v. Carle, 2 Stockt. (N. J.) 54& 'White v. Buloid, 2 Paige, 164; Williams v. Carle, 2 Stockt. (N. J.) 545. Cartwright v. Clark, 4 Metcalf, 104; White v. Buloid, 2 Paige, 164; Williams v. Carle, 2 Stockt. (N. J.) 545.

8

• White v. Buloid, 2 Paige, 164; Williams v. Carle, 2 Stockt. (N. J.) 545.

All the plaintiffs in the cross-bill must join in the application to stay proceedings. And to entitle them to an order to stay the proceedings, it is necessary the matters stated in the cross-bill should be sworn to by some person, who knows the facts.1

In Ramkissenseat v. Barker,2 it is laid down, that the general rule is not to stay proceedings in an original cause till the answer comes in to the cross-bill, but only to enlarge publication in the original cause, until the plaintiff in that cause shall have fully answered the cross-bill; and in Coates v. Pearson, the Court refused to stay the progress of an original cause, which had been set down, although no answer had been filed to the cross-bill, observing, if the cross-bill is filed in due time, the plaintiff in the crosssuit may move to stay publication in the original cause until an answer has been put in. And the circumstance of the defendant to the cross-bill being in contempt for want of his answer to that bill, does not entitle the plaintiff in the cross-suit to stay proceedings in the original cause, but only to enlarge publication.5

In Young v. Potts, after the cause on the original bill was set down for hearing, the defendant was informed, that the plaintiff was a nominal one, and that the real plaintiff was a citizen of the same State with the defendant, (which deprived the Court of jurisdiction) and he immediately filed a cross-bill, charging this fact, and asking a discovery, and the hearing on the original bill was stayed until the cross-bill was answered."

After answer the defendant filed a cross-bill. The plaintiff in the original cause, before filing his answer to the cross-bill, filed a supplemental bill against the plaintiff in the cross-suit. The plaintiff in the cross-suit moved to stay the answer to the supplemental bill until his cross-bill had been answered, which was ordered upon debate. So where the original bill abated before answer by the marriage of the plaintiff, and, before revival, the defendant filed a 1 Talmadge v. Pell, 9 Paige, 410.

21 Atk. 20.

465.

4 Madd. 20.

See Gardiner v. Mason, 4 Bro. C. C. 436, cited 1 Smith Ch. Pr. (2d Am. ed.)

Creswick v. Creswick, 1 Atk. 290; Story Eq. Pl. 395; see White v. Buloid,

2 Paige, 164, and Young v. Potts, 4 Wash. C. C. 521.

8

4 Wash. C. C. 521.

See Brown v. Beel, 4 Hayw. 287.

• Urquhart v. Turner, cited 1 Smith Ch. Pr. (2d Am. ed.) 466.

cross-bill, Lord Hardwicke held that the plaintiffs in the original cause lost their priority of answer, and discharged the order obtained by them for a month's time to answer the cross-bill, after the original bill was answered.1

The original cause and cross-cause are usually, although not necessarily, heard together, and they are considered so united, that the plaintiff in the cross-cause is bound to set down his cause in the same Court as that in which the original cause is set down.3

This applies where both causes are at issue or in a situation to be heard, and then the plaintiff in the cross-suit may have an order, that they be heard together. But the delay of the plaintiff in the cross-suit will not be permitted to delay the hearing of the original cause. The order, that the causes may be heard together, is obtained on a motion ex parte, and a copy of the order should be served.5

6

In Field v. Schieffelin, it is said, "for whatever purpose the cross-bill may be used, if it comes in after publication, the plaintiff in it cannot take proof to any point, to which he has already examined, for this would contravene the principles of the Court." "The object of the rule is to prevent the danger of perjury.”

The depositions in the cross-cause, to distinct matters, can of course be read; and if no witnesses have been examined in the original suit, the testimony in the cross-suit can be used.8

So if no witnesses are examined in the cross-suit, the depositions in the original suit may be read. But the point in issue must be the same in both causes.9

The testimony taken in a cross-cause may be read, although the bill be dismissed, saving just exceptions.10

1 Smith v. Floyer, Dick. 262.

2 Coleman v. Moore, 3 Litt. 355.

8

1 Smith Ch. Pr. (2d Am. ed.) 468. See Story Eq. Pl. § 395; Reed v. Kemp,

16 Ill. 445.

* White v. Buloid, 2 Paige, 164. See Story Eq. Pl. § 395.

Hand's Sol. Ass. 106; Hinde, 54.

7 John. Ch. 252, 253.

See Story Eq. Pl. § 395; White v. Buloid, 2 Paige, 164; Wilford v. Beasley, 3 Atk. 501; Taylor v. Obee, 3 Price, 26, 83; Kinsey v. Kinsey, 2 Vesey Sen.

578.

• Wilford v. Beasley, 3 Atk. 501.

• Christian v. Wrenn, Bunbury, 321.

10 Lubiere v. Genon, 2 Vesey Sen. 579. See Christian v. Wrenn, Bunbury,

In a case where all the objects sought by a cross-bill might have been attained by proper answers and proceedings under the original bill, and the cross-bill was thence unnecessary, it was dismissed without costs to either party.1

CHAPTER XXXV.

BILL OF INTERPLEADER.

WHERE two or more persons claim the same thing, by different or separate interests, and another person, not knowing to which of the claimants he ought of right to render a debt or duty, or to deliver property in his custody, fears he may be injured by some of them, he may exhibit a bill of interpleader against them, and pray that the claimants may be restrained from proceeding till the right is determined.2

321. A plaintiff cannot make his answer a cross-bill to the defendant's cross-
bill, for the reason that the new matter can only be brought before the Court by
an amended or supplemental bill. Brown v. Troup, 33 Miss. (4 George) 35.
1 Bogle v. Bogle, 3 Allen, 158, 161.

Mitf. Eq. Pl. by Jeremy, 48, 49; Dungey v. Angove, 2 Sumner's Vesey, 309, 310; Angell v. Hadden, 15 ib. 244; Eden Injunct. (2d Am. ed.) 393, 394; Stevenson v. Anderson, 2 Ves. & Bea. 407; Morgan v. Marsack, 2 Mer. 107; Story Eq. Pl. § 291, 292; Crawshay v. Thornton, 7 Sim. 391; S. C. 2 Cr. & Phil. 1, 21; Bedell v. Hoffman, 2 Paige, 199; Atkinson v. Manks, 1 Cowen, 691; Bell v. Hunt, 3 Barb. Ch. 391; Strange v. Bell, 11 Geo. 103; Greene v. Mumford, 4 Rhode Isl. 313; Providence Bank v. Wilkinson, 4 Rhode Isl. 507; Farley v. Blood, 10 Foster (N. H.) 354; Hayes v. Johnson, 4 Ala. 267. In Hoggart v. Cutts, 1 Cr. & Phil. 204, Lord Cottenham said: "The definition of interpleader is not, and cannot now be disputed. It is where the plaintiff says, I have a fund in my possession, in which I claim no personal interest, and to which you, the defendants, set up conflicting claims; pay me my costs, and I will bring the fund into Court, and you shall contest it between yourselves. The case must be one in which the fund is matter of contest between two parties, and in which the litigation between those parties will decide all their respective rights with regard to the fund." See, also, 2 Story Eq. Jur. 817 b; Shaw v. Coster, 8 Paige, 339; and generally upon this subject, 2 Story Eq. Jur. § 800 to 824; Horton v. Baptist Church and Society in Chester, 34 Vermont, 309.

To justify a bill of interpleader, there should be either some specific chattel, or some definite sum of money, to which different parties in the same right, or in privity of estate, make claim, and the person bringing the bill should be a mere stakeholder, having no interest in the matter; so that when the Court decree an interpleader, the plaintiff can step out of the case altogether. Lincoln v. Rut. &

The ground of the jurisdiction, in a simple bill of interpleader, is the danger of injury to the plaintiff from the doubtful and conflicting claims of the several defendants, as between themselves.1

A claim made upon a party affords a ground for his filing a bill of interpleader, though no legal proceedings have been actually commenced against him.2

Even a liability to be called on by different persons for the demand gives a right to file such a bill, to determine which of the parties is entitled.8

A bill of interpleader may be filed, though the claim of one of the defendants is actionable at Law and that of the other in Equity.4

It is no objection to an interpleading bill, that a suit between the several parties, commenced by one of the claimants of the fund, is pending.5

The plaintiff in a bill of interpleader, strictly so called, can claim no relief against either of the defendants, but only ask for leave to pay the money or deliver the property to the one to whom it, of right, belongs, in order that he may thereafter be protected Bur. R. R. Co., 24 Vermont, 639. An interpleader may be allowed where real estate is the subject of controversy. Farley v. Blood, 10 Foster (N. H.) 354.

1 Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 392; Mitf. Eq. Pl. by Jeremy, 49; Atkinson v. Manks, 1 Cowen, 703; Langston v. Boylston, 2 Sumner's Vesey, 101, note (a); Story Eq. Pl. § 291, 292; Eden Injunct. (2d Am. ed.) 395, 396, 397; Woods J. in Farley v. Blood, 10 Foster (N. H.) 361; Badeau v. Rogers, 2 Paige, 209; Griggs v. Thompson, 1 Geo. Decis. 146.

2

Langston v. Boylston, 2 Sumner's Vesey, 101, 107, note (1) and cases cited; Dungey v. Angove, ib. 310; Angell v. Hadden, 15 ib. 247, Mr. Hovenden's note (1); Richards v. Salter, 6 John. Ch. 445; Morgan v. Marsack, 2 Mer. 107; Gibson v. Goldthwaite, 7 Ala. 281. A party not positively claiming the fund, but not assenting to the payment of it to another claimant, when required to do so, was properly made defendant to a bill of interpleader, and had to pay the costs. Fenn v. Edmonds, 5 Hare, 314. But see Desboro v. Harris, 5 De G., M. & G. 439, 455.

* Duke of Bolton v. Williams, 2 Sumner's Vesey, 152; East India Co. v. Edwards, 18 ib. 377; Angell v. Hadden, 15 ib. 247, Mr. Hovenden's note (1). An interpleader was not allowed in a case where the title did not appear doubtful, and no counter-claim was made actively. Desboro v. Harris, 5 De G., M. & G. 439, 455.

Richards v. Salter, 6 John. Ch. 445; Yates v. Tisdale, 3 Edw. Ch. 71; Schuyler v. Pelissier, 3 Edw. Ch. 191; Doran v. Everitt, 2 Irish Eq. 28; Paris v. Gilham, Cooper, 56; Martinius v. Helmuth, 2 Ves. & Bea. 412 (2d ed.); Morgan v. Mar sack, 2 Mer. 107.

5 Warrington v. Wheatstone, 1 Jac. 202; City Bank v. Bangs, 2 Paige, 570.