The claims of defendants are not the same, nor of the same nature. Each, as alleged, arises out of a separate and independent contract with the plaintiffs by defendants severally.

The contract with Wade was made by plaintiffs subsequently to their agreement to purchase, and neither Trenouth nor Bliss was a party to the Wade contract. If plaintiffs agreed to retain out of the purchase money arising from the sale of the wheat any sum of money due to Wade," it does not appear that Trenouth assented to that arrangement, or admitted that any sum was due Wade. Plaintiffs cannot ask a Court of equity to require the defendants to interplead, and thereby have determined whether Trenouth. formerly owed Wade, and how much. If plaintiffs are indebted to Wade, it is not for so much wheat sold and delivered, but is upon a specific contract, by which they bound themselves to pay the amount of a lien, if any existed. The right to remedy by interpleader is founded, however, not on the consideration that a man may be subjected to double liability, but on the fact that he is threatened with double vexation in respect to one liability. (East & West India Dock Co. vs. Littledale, 7 Hare, 60; Great Southern, etc., R. R. Co. vs. Corry, 15 W. R. 651; Wait, 154.)

A vendee sued by his vendor for the price of goods, and by a third party in trover for their value, cannot maintain an interpleader suit, since the claims made against him are not identical; the one seeking to have the benefit of a contract, the other claiming the value of chattels which are the subject of it. (Slaney vs. Sidney, 14 M. and W. 800.)

A deposited certain iron with B & Co., who were wharfingers, and afterwards directed them to deliver it to C. C applied to B & Co. to know the particulars of the iron held by them on his account; and B & Co. then wrote a letter to C, saying that in compliance with his request they annexed a note of the landing weights of the iron transferred into his name by A, and now held by them (B & Co.) at his (C's) disposal. B & Co. subsequently received a notice from D that the iron belonged to him, and that it had been deposited with A, as an agent, for sale, and that he had without authority pledged it to C. B & Co. then filed a bill of interpleader against C and D. Held, on demurrer (affirming the decision of the Court below), that after B & Co's letter to C, they could not maintain a bill of interpleader against him. (Crawshay vs. Thornton, 2 Mylue and Craig, 1.) During the argument of the case last cited Lord Cottonham remarked: "If what has taken place amounts to an independent contract (between the wharfingers and the assignee of

the original depositor), it is one which cannot be decided between the parties to this suit" (p. 14). And in giving judgment, the Chancellor said: "The case tendered by every such bill of interpleader ought to be that the whole of the rights claimed by the defendants may be properly determined by litigation between them, and that the plaintiffs are not under any liabilities to either of the defendants beyond those which arise from the title to the property in contest; because, if the plaintiffs have come under any personal obligation, independently of the question of property, so that either of the defendants may recover against them at law, without establishing a right to the property, it is obvious that no litigation between the defendants can ascertain their respective rights as against the plaintiffs, and the injunction, which is of course if the case be a proper subject for interpleader, would deprive a defendant having such a case beyond the question of property, of part of his legal remedy, with the possibility at least of failing in the contest with his co-defendant, in which case the injunction would deprive him of a legal right, without affording him any equivalent or compensation. Such a case undoubtedly would not be a case for interpleader. A party may be induced, by the misrepresentation of the apparent owner of the property, to enter into personal obligations with respect to it from which he may be entitled to be released by a Court of equity; but such a case could not be a subject for interpleader between the real and pretended owners. In such a case the plaintiff would be asserting an equity for relief from a personal contract against one of the defendants with which the other would have nothing to do."

The complaint does not allege in terms that plaintiffs promised to and agreed with defendant Wade that they would "retain out of the purchase money arising from the sale of said wheat any sum of money due to said Wade" from Trenouth. If there was no such agreement on their part, and if Wade voluntarily relinquished his lien and delivered the wheat to the purchaser, it is clear that Wade cannot assert any claim to any portion of the purchase money in the hands of plaintiffs, and that plaintiffs know it. If, on the other hand, the complaint is to be construed as averring a promise by plaintiffs to pay to Wade the amount of his lien, as the consideration of a transfer of the possession, it is equally clear that plaintiffs, by an independent contract with Wade, have assumed the position of successors in interest to him. They have by that contract also taken a stand antagonistic to defendant Bliss, to the extent of any lien the benefit of which has been

assigned to them. The plaintiff in an interpleader case must appear to have no interest in the subject-matter. (Lincoln vs. Rutland, etc., R. Co., 24 Vt. 639, 2 Paige, 199.) Plaintiffs do not occupy the place of mere stakeholders, but have adversary interests to those of Bliss, which cannot be determined in an issue joined between the defendants. The case of Glyn vs. Duesbury, 11 Sim. Ch. 139, was this: Duesbury, an architect and surveyor, brought an action against Glyn, his employer, for £155, the amount of a running account between them, one item of which was £76, which Duesbury had paid to a third party at the request of Haynes, a contractor, to whom it was due for plumbers'. work done for Glyn. Haynes having taken the benefit of the Insolvent Debtors' Act, his assignee demanded the £76 of Glyn, insisting that the payment to the third party was invalid. Glyn paid into Court £79, being the £155 minus £76. Duesbury took the £79 out of Court and proceeded with his action. Glyn then filed a bill of interpleader against Duesbury and the assignee of Haynes respecting the £76. Held, that the bill was not sustainable. Sir Lancelot Shadwell, V. C., said: "A case of interpleader then arises where the same subject, whether debt, duty, or thing is claimed. Now, when the subject in dispute has a bodily existence, no difficulty can arise on the ground of identity; for no dispute can arise as to identity of matter. But where the subject in dispute is a chose in action, which has no bodily existence, it becomes necessary to determine what constitutes identity. Where the claims made by the defendants are of different amounts, they never can be identical; but where they are the same in amount, that circumstance goes far to determine their identity. The amount, however, may not be sufficient of itself to determine the identity; for the amount may be the same and the debt may be different. In this case, Haynes having become insolvent, Obbard, as his assignee, claims a debt due for work and labor done by him for the plaintiff; and Duesbury, who was the plaintiff's agent, and who superintended the works, claims a debt due to him from the plaintiff in respect of his having paid certain moneys on the plaintiff's account, among which is included a sum paid by him to or on account of Haynes for work and labor done; and the question is, whether the debt or duty claimed by Duesbury is the same as that claimed by Obbard. It appears to me that, although there is a complication of circumstances which prima facie give color to the assertion that the two sums are substantially the same debt, yet if Duesbury had brought an action against the plaintiff,

Obbard, in right of recovering, even alSuppose that Dues

and had in that case recovered the whole amount of what he claimed, that would not have prevented Haynes, from bringing his action and though the amounts might be the same. bury's claim of debt had originally arisen from one set of circumstances, and Obbards' claim from another source, could the plaintiff, by paying the debt to Duesbury, be morally and conscientiously said to have paid the debt to Haynes; or, vice versa, if he had paid Haynes, might not Duesbury have recovered?

"The matter, I think, must depend on the original nature and constitution of the debt; and when the debt to Duesbury arose in respect of acts done by him in his character of architect and surveyor to the plaintiff, and the debt to Haynes in respect of work and labor done, I do not see how the two debts can be the same. It seems to me that they are originally and substantially different in their nature, and therefore that they cannot be properly made the subject of a bill of interpleader. The consequence is that the injunction must be dissolved."

Mr. Wait, in his work upon "Actions and Defenses," lays down as a rule: "An interpleader will be sustained whenever it is necessary for the protection of a person from whom several others claim, legally or equitably, the same thing, debt, or duty, but who has incurred no independent liability to any of them, and does not himself claim an interest in the matter. (A. and D., p. 150; Cady vs. Patter, 55 Barb. 463; Barry vs. Mut. Life Ins. Co., 53 N. Y. 536. See also other cases cited in the same section.) Here, as we have seen, plaintiffs are not mere stakeholders, but have an interest to the extent of the lien of the pledgee, as alleged assignees of defendant Wade. The asserted duty due from plaintiffs to the defendants respectively is not identical, and plaintiffs have entered into a several and independent contract with each of the defendants.

There is another reason why the present bill cannot be maintained. It is essential to the right of interpleader that the person standing in the position of a stakeholder is ignorant of the rights of the different claimants to the fund held by him, or at least that there is some doubt as to which of them is entitled to the fund, so that he cannot safely pay it to either. (22 How. 22; 11 Ga. 103; 10 Abb. N. S. 243; 3 Barb. Ch. 91; 3 Daly, 434.)

Plaintiffs here cannot be permitted to claim that they are ignorant of the facts upon which the claims of defendants respectively are based. They know that defendant Bliss de

mands the price of the wheat; they know also, or must be held to know, what sum they became bound to pay to defendant Wade when they obtained possession of the wheat. From these facts no such reasonable doubt as to the law arises as can justify a resort to the remedy here sought.

The plaintiffs have acknowledged a right by way of lien, in some sum, in defendant Wade by taking a transfer with the promise to pay him the sum, whatever it may be, for which he held the property in pawn. Thus they have incurred a separate liability to him, while they have assumed such an obligation as compels them, for their own protection, to contest the right of defendant Bliss to a portion of the purchase price.

To recapitulate: It appears from the complaint that plaintiffs are not mere stakeholders, without any interest or claim of interest in the fund; that the claims of defendants are not identical in amount; that the claims in other respects do not relate to the same debt or duty; that the plaintiffs have acknowledged the validity, to some extent, of the claim of one of the defendants, and incurred a separate liability to him; that the claims of each of defendants arises out of a separate and independent contract.

Judgment reversed.

We concur: Ross, J., McKee, J.

DEPARTMENT No. 2.

[Filed September 14, 1880.]
No. 6719.

C. W. CLARK ET AL., RESPONDENTS,

VS.

THOS. FOWLER, APPELLANT.

Appeal from the District Court of the Thirteenth Judicial District, Tulare County.

W. W. Cross, for respondents.
Atwell & Bradley, for appellant.

By the Court:

There being no appearance, and no brief on file on behalf of appellant, A. P. Catlin, Esq., appearing for respondent, and it appearing to the Court that the appeal was taken for delay, it is ordered that the judgment and order be and they are affirmed, with damages at the rate of five per cent. of the amount of the judgment rendered in the Court below.