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sion,36 but a reference may be directed when such a charge is made, and at the hearing collusion may be shown.37

In England, a bill of interpleader can be successfully maintained although all the defendants are beyond the jurisdiction of the court.3 38

Interpleader suits are usually heard on bill and answered 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.39 The court may of its own motion take an objection to a claim not raised by either of the parties.40 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.41 An order directing one of the defendants to plead under oath within ten days, and to file a bond with a surety for the payment, if he lost the case, of the costs and expenses to the other defendant, was held to be erroneous.4 42

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 when both are legal, a reference to a master is usually ordered.43 At the hearing, each defendant may read the other's answer against him.44 If one of them has allowed the bill to be taken as confessed against him,

36 Stevenson v. Anderson, 2 Ves. & B. 407; Manby v. Robinson, L. R. 4 Ch. App. 347; Fahie v. Lindsay, 8 Oreg. 474.

37 Manby v. Robinson, L. R. 4 Ch. Ap. 347; Langston v. Boylston, 2 Ves. Jr. 101; Dungey v. Angove, 2 Ves. Jr. 304.

38 Martinius V. Helmuth, G. Cooper, 248; Stevenson v. Anderson, 2 Ves. & B. 412. Contra, Herndon v. Ridgeway, 17 How. 424, 15 L. ed. 100; N. Y. Life Ins. Co. v. Dunlevy, C. C. A., 214 Fed. 1, supra, § 96.

39 Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.), 570.

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41 Daniell's Ch. Pr. (2d Am. ed.) 1765; Angell v. Hadden, 16 Ves. 202; City Bank v. Bangs, 2 Paige (N. Y.) 570.

42 Buck v. Mason, C. C. A., 135 Fed. 304.

43 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.

44 Bowyer v. Pritchard, 11 Price, 103; Daniell's Ch. Pr. 1765. See Penn. Mut. L. I. Co. v. Union Tr. Co., 83 Fed. 891.

this is considered as an admission that the bill was properly filed, and that he made an improper claim against the fund; 45 and the defendant, who has answered him, may obtain suitable relief, including a decree against the defaulter for his costs and the costs paid the plaintiff.46 If, after answer, one of them defaults at the hearing, the court will enter a decree after hearing the other.47

The plaintiff, if successful, was formerly entitled to his costs, including a counsel fee,49 out of the fund, if there were one. Otherwise, from the defendant whose claim was finally held bad.50 These costs, as well as the costs of the successful defendant, had eventually to be paid by him whose claim was finally dismissed.51

It has been said that when the bill is dismissed, there can be no further proceedings in the cause as between the defendants; not even by consent; inasmuch as the court has thereby lost jurisdiction.52 After a decree in the plaintiff's favor, the cause is terminated as to him; and in case of his subsequent death the cause will proceed without a revivor.53

§ 158. Bills in the nature of interpleader. Where the plaintiff claims for himself some interest in the fund or matter in question, or does not admit the whole of a defendant's claim, or the defendants claim different amounts, although a bill of interpleader may not, a bill in the nature of an interpleader

45 Badeau v. Rogers, 2 Paige (N. Y.) 209; Fairbrother v. Prattent, 1 Daniel 64. But see Standley v. Roberts, 59 Fed. 836.

46 McNamara v. Provident Sav. Life Assur. Soc., 114 Fed. 910.

47 Hodges v. Smith, 1 Cox Eq. 357.

48 Dunlop v. Hubbard, 19 Ves. 205; Downson v. Hardcastle, 2 Cox Eq. 279; McNamara v. Provident Sav. Life Assur. Soc., 114 Fed. 910. 49 Where the face value of a life insurance policy was $50,000, the sum of $1,000 was allowed as a counsel fee. Mutual Life Ins. Co. v. Lane, 151 Fed. 276. Where the amount was $10,000 or less, $150

was allowed. McNamara v. Provident Sav. Life Assur. Soc., C. C. A., 114 Fed. 910, 912. See Mutual Life Ins. Co. v. Farmers' & Mechanics' Nat. Bank, 173 Fed. 390, 402; § 422, infra.

50 Aldridge v. Mesner, 6 Ves. 418; Mason v. Hamilton, 5 Simons, 19; Daniell's Ch. Pr. 1767.

51 Mason v. Hamilton, 5 Simmons, 19; Cowtan v. Williams, 9 Ves. 107; Daniell's Ch. Pr. (2d Am. ed.) 1766, 1767.

52 Jennings v. Nugent, 1 Molloy, 134.

53 Anon., 1 Vern. 351; Jennings v. Nugent, 1 Molloy, 134; Daniell's Ch. Pr. 1765.

may be sustained. It has been held that such a suit may be maintained by a mortgagee, to compel the mortgagor and a municipal corporation to submit to the court a dispute between them concerning the right to forfeit a franchise. A bill by a trustee praying leave to resign a trust and to return the subjectmatter thereof to a new trustee, in accordance with the terms of the trust agreement, is not a bill in the nature of an interpleader. A pleading, filed as a bill of interpleader, may be sustained as a bill in the nature of an interpleader. The frame of such a bill and the proceedings thereunder should conform, mutatis mutandis, to those of a strict bill of interpleader. When a suit is pending in which the necessary diversity of citizenship exists, the citizenship of the parties of such a bill is immaterial to the jurisdiction. After payment of what he admts to be due, a decree may be entered discharging the plaintiff as to that, and directing the suit, or if an action at law has previously been begun, the latter, to proceed till his disputed rights are determined.7

6

§ 159. Bills of certiorari. A bill of certiorari was a bill filed in a superior court of equity for the purpose of removing thither a suit in equity pending in an inferior court, on account of some alleged incompetency in the latter or some defect in its proceedings. Such a bill first stated the proceedings in the inferior court; then the cause of its incompetency, as, for ex

§ 158. 1Dorn v. Fox, 61 N. Y. 264; Mohawk & Hudson R. R. Co. v. Clute, 4 Paige (N. Y.), 385; Provident Sav. Life Assur. Soc. v. Loeb, 115 Fed. 357; Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865; Hayward & Clark v. McDonald, C. C. A., 192 Fed. 890; Sherman Nat. Bank v. Shubert Theatrical Co., C. C. A., 238 Fed. 225. See Robinson v. Brast, C. C. A., 149 Fed. 149; Story's Eq. Pl., § 297b; Daniell's Ch. Pr. (2d Am. ed.), 1768, Contra, New England Mutual Life Ins. Co. v. Odell, 50 Hun (57 N. Y. S. C. R.) 279.

2 Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865.

3 Moore Printing Typewriter Co. v. National Savings & Tr. Co., 218 U. S. 422, 54 L. ed. 1093.

4 McNamara V. Provident Sav. Life Assur. Soc., 114 Fed. 910.

5 McNamara V. Provident Sav. Life Assur. Soc., 114 Fed. 910.

6 Sherman Nat. Bank v. Shubert Theatrical Co., 238 Fed. 225.

7 City Bank v. Bangs, 2 Paige (N. Y.), 570. See Groves v. Senteel, 153 U. S. 465, 38 L. ed. 785; s. c., 66 Fed. 179.

§ 159. 1 Mitford's Pl. ch. 1; Story's Eq. Pl., § 298.

ample, that the subject of the action or the parties were not within its jurisdiction, or that, for some other cause, equal justice could not be done there; and finally prayed a writ of certiorari, to certify and remove the record and the cause to the superior court.2 It did not pray that the defendant should answer, or even that he should appear to the bill, and consequently prayed for no writ of subpoena, although a supboena had to be sued out and served.3 It was considered as an original bill, and filed as such in the superior court. Thereupon, the plaintiff was required to execute a bond in the penalty of £100, with one surety conditioned to prove the suggestions of the bill in fourteen days. A subpoena was next sued out and served; and a writ of certiorari issued directed to the judge of the inferior court, requiring him to certify or send to the court issuing the writ the tenor of the bill or plaint below, with the process or proceedings thereon. The writ having been served and returned, together with the required statement and papers, an order directing them to be filed was then obtained. Testimony to prove or disprove the suggestions of the bill was immediately taken, and the cause referred to a master to report whether they were proven or no. This was required to be done within fourteen days, unless the court specially enlarged the time. If the allegations were proved and showed a sufficient reason for retaining the suit, an order to retain the bill was granted; and the defendant below was obliged to answer, and the cause removed proceeded in the same manner as if it had been originally instituted in the superior court. In no reported case has such a bill been filed in a court of the United States, although petitions for writs of certiorari in proceedings at common law are not uncommon.5

2 Story's Eq. Pl., § 298.

3 Story's Eq. Pl., § 298; Mitford's Pl. ch. 1.

4 Hindee's Pr. 28-32 and 581, 582.

5 See infra, § 460.

CHAPTER VI.

SUBPOENAS TO ANSWER.

§ 160. Definition and form of subpoena. The first process in a court in equity is the subpoena ad respondendum which is a writ requiring the defendant to answer the bill under penalty therein expressed. A similar writ, called quibusdam certis de causis, in the form of a subpoena without any penalty, is also found in some of the early English chancery cases. The process of subpoena constitutes the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill. These writs, like all writs and processes issuing from the courts of the United States, must be under the seal of the court from which they issue, and signed by the clerk thereof. Those issuing from the Supreme Court must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the Associate Justice next in precedence. Those issuing from a District court must bear teste of the Judge, or, when that office is vacant, of the clerk thereof.3 When issued from the Supreme Court the writ must be in the name of the President of the United States.1

In the Supreme Court, the return day of the writ must be at least sixty days from the service thereof. 5 In the District courts, the return day is twenty days from its issue.

In the District courts, whenever a bill is filed, and not before, the clerk shall issue the process of subpoena thereon, as of course, upon the application of the plaintiff, which shall contain the names of the parties and be returnable into the clerk's office twenty days from the issuing thereof. At the bottom of the sub

§ 160. 1 Mr. Justice Holmes, in an article on Early English Equity, 1 Law Quart. Rev. 162, note 2, citing Palgrave, King's Council, 131, 132, note x; Scaldewell v. Stormesworth, 1 Cal. Ch. 5.

2 Equity Rule 7.

3 U. S. R. S., § 911.
4 U. S. S. C. Rule 5.
5 U. S. S. C. Rule 5.
6 Equity Rule 12.

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Fed. Prac. Vol. I-59

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