Parker v. Barker , 42 N.H. 78 ( 1860 )

Bell, C. J.^*

It is objected to this bill, that a bill of interpleader does not lie for a sheriff to compel parties who claim the property which he has taken on execution, to litigate their rights as between themselves.

A single English case is cited in support of this position— Slingsby v. Boulton, 1 V. & B. 334 — thus stated: “Where goods, seized and sold by a sheriff, were claimed by trustees under a settlement, who brought an action of trover therefor against him, Lord Eldon refused an injunction, upon an interpleader bill filed against the trustees, and the creditor in the execution. He said the sheriff acted at his peril in selling the goods, and was concluded from stating a case of interpleader, in which the complainant always admitted a title in all the defendants as against himself. That a person could not file a bill of interpleader, who was obliged to put himself upon this, that as to some of the defendants he was a wrongdoer.”

This is the only case I recollect seeing in the English books, of such a bill of interpleader ; but the same doctrine is laid down in 2 Story’s Eq. 124, sec. 821, and was held in Shaw v. Chester, 2 Edw. Ch. 405; and Shaw v. Coster, 1 Paige 344; in Quinn v. Green, 1 Ired. Eq. 229; and Quinn v. Paton, 2 Ired. Eq. 48 (2 U. S. Eq. Dig. 115; 32, 33); and is stated in the American editor’s chapter on Interpleader, 3 Dan. Ch. Pr. 1757, and in 1 Smith’s Ch. Pr. 472. The case of Storrs v. Payne, 4 Hen. & Mun. 506, is cited in the Digest as holding a contrary doctrine (2 U. S. Eq. Dig. 115; 31); but Walworth, Ch., is of opinion that the case agrees with the other decisions. 8 Paige 346.

These books all relate to seizures of property on execution, where the title is in dispute, and there are several claimants at the time of the seizure. There is, however, another class of cases of conflicting claims upon the property seized by an officer, where no doubt is suggested as to the title of the property, or the propriety of the seizure at the time it was made, but conflicting claims have afterward grown up, either to the property or its proceeds. To these cases the objection made in Slingsby v. Boulton has no application. Of this class is the case of Nash v. Smith, 6 Conn. 421. There neither of the defendants to the bill of interpleader claimed title to the property adversely to Silliman, the execution debtor. The officer, therefore, had no interest adverse to the claim of either party, as each had put into his hands process to be levied on the same property, the one claiming it as the individual property of Silliman, and the other as the partnership property of Silliman and Cook. There was, therefore, a privity between the officer and each of the defendants, and the only question was, whether the proceeds of the sale, which had been rightfully made, should be applied to the payment of the individual debt, or of the partnership debt. The bill was sustained, and Walworth, Ch., says (8 Paige 846) it was clearly a proper case for a bill of interpleader, if the complainant, instead of paying the money to one of the parties, had retained it, and offered to bring it into court.

This solitary case and single dictum are all I have been able to find in the books, which give any countenance to a bill of interpleader by a sheriff, in cases of this kind. It seems the decision can not be supported, not only for the reason alluded to by Chancellor Walworth, that the money had been paid over by the sheriff to one of the parties, but for the reason that the complainant had a perfect remedy at law. "We think it clear that the courts of law are fully competent to protect sheriffs in the execution of official process, in the case of conflicting claims. Shaw v. Chester, 2 Edw. Ch. 405. The fact that, with the exception of the doubtful cases in Connecticut, no case of an interpleader bill has been maintained by a sheriff, in a case of this kind, though the occasion for them must have been always extremely frequent, is conclusive that redress and relief must have been sought and found elsewhere than in the courts of equity. Beside, we think no community would have submitted to so tedious and expensive a method of settling the question, how money, coming into an officer’s hands by levy of execution, should be disposed of.

The law on this subject is stated in Tidd’s New Practice 573. “Previously,” he says, “to the new inter-pleader act (1 W. 4), if the property of goods had been disputed, which frequently happened on a commission ol bankrupt, &c., the courts, on suggestion of a reasonable doubt, would have protected the sheriff, by enlarging the time for making the return, till the right was tried between the contending parties, or one of them had given him a sufficient indemnity. The rule for this purpose was a rule to show cause. And the Court of Eng’s Bench, upon the application of the sheriff, enlarged the time for making the return to a writ of fi. fa., upon suggestion of a reasonable doubt whether the goods seized under the writ were not bound by an extent, afterward issued at the suit of the crown for malt duties, for the purpose of inducing the plaintiff to go into the Court of Exchequer, and there contest the question of right with the crown in a more eligible manner than in that court. So where it appeared by affidavit that writs of extent and fi. fa. had been issued on the same day, the Court of Eng’s Bench, for protecting the sheriff, refused to allow a venditioni exponas to be issued, on the return of the fi. fa., to compel him to sell the goods under it. So where a bankrupt brought one action and his assignees another, against the sheriff, the court allowed the latter to pay the money into court, and stayed the proceedings until the trial of an issue between the bankrupt and his assignees. Jones v. Perry, 21 Geo. III, K. B. And, in general, where an action was brought against the sheriff by the assignees of a bankrupt, for taking goods in execution after a bankruptcy, the courts would assist the sheriff, by staying the proceedings, until he was indemnified on proper and equitable terms.” The authorities cited by the learned author are very numerous, and fully sustain his statement of the law. Those cited in support of the last position are McGeorge v. Birch, 7 Taunt. 585; King v. Bridges, 7 Taunt. 294; 1 Moore 43; Probinia v. Roberts, 1 Chit. 577, 643, a; Anon., 2 Chit. 204; Venables v. Wilkes, 4 Moore 339; Bernasconi v. Fairbrother, 7 B. & C. 379; Beavan v. Dawson, 6 Bing. 566; 4 Mo. & P. 387; Ibberson v. Dicas, 1 Leg. Obs. 109, 398; Solari v. Randall, 1 Leg. Obs. 159; Anon., 2 Leg. Obs. 334; many of which are collected in 3 Harr. Dig. 6133. And see Watson on Sheriffs, 184.

By the precept of the common law writ of fi. fa., the sheriff is commanded, “ and have yon that money before our justices at W., on, &c., to render to the said A., for the debt and damages aforesaid.” Imp. Mod. Pr. 496; 2 Lillie’s Ent. 581, &c. There the allowance of time to return the writ protects the sheriff against a suit. Moreland v. Leigh, 1 Stark. 188.

Here the precept of the execution is, “You cause to be levied and paid to the said creditor the aforesaid sums,” &c. (Rev. Stat. 496, sec. 10), and the sheriff is liable to a penalty for refusal or neglect to pay over any money received, without reference to the return of the execution. Rev. Stat. 454, sec. 11. An order here extending the return of the execution would not protect the sheriff; but the cases cited show that the powers of the courts of law are not restricted to any specific mode of affording relief, but they may stay any proceedings in court, where it is necessary or proper for the sheriff’s protection.

With such powers vested in the courts of law, it can not be necessary to seek relief by proceedings in equity. And the summary character of the proceedings at law renders them altogether more suitable to afford the required redress. Such proceedings must be prompt. They must, unless special circumstances are shown, be commenced at the next term. Bernasconi v. Fairbrother, 7 B. & C. 379; Rex v. Sheriff of Devon, 1 Chit. 643; Beale v. Overton, 2 M. & W. 534; Cook v. Allen, 1 C. & M. 542. The proceeding is by a rule to show cause, and affidavits in support of it. Ledbury v. Smith, 1 Chit. 294.

Though the court may order the proceedings to be stayed until an issue has been tried between the contending parties, the proceedings are under the control of the court, and are summary in their character. Jones v. Perry, Tidd’s N. P. 574; Ledbury v. Smith, 1 Chit. 294; Thurston v. Thurston, 1 Taunt. 120; Burr v. Frethy, 1 Bing. 71; 7 Moore 368; Etchells v. Lovett, 9 Price 54. Yet this is neither the mode nor the measure of the relief ordinarily afforded in such cases by the courts of law. The law recognizes the principle that the sheriff has a right to require an indemnity, in all cases of risk arising from an attachment or levy on property, which may expose him to danger or expense on account of conflicting titles to the property, and regards this as as the proper security to the officer against the hazards incident to his official duties. Richards v. Gilmore, 11 N. H. 497; Perkins v. Pitman, 34 N. H. 261; Benson v. Ela, 35 N. H. 402.

Tn a large majority of the reported cases, the stay of proceedings, or the time allowed for the return of the process, is made to be of force until the sheriff is indemnified. Such are the cases of Keightley v. Birch, 3 Camp. 520; Saunders v. Bridges, 3 B. & A. 95; Venables v. Wilkes, 4 J. B. Moore 339; Thurston v. Thurston, 1 Taunt. 120; Ledbury v. Smith, 1 Chit. 294; Rex v. Sheriff of Devon, 1 Chit. 643; Shaw v. Tunbridge, 2 Bl. 164; Probinia v. Roberts, 1 Chit. 577; McGeorge v. Birch, 4 Taunt. 585; King v. Bridges, 7 Taunt. 294; 1 Moore 243; Beavan v. Dawson, 6 Bing. 566; Holmes v. Mentze, 4 Ad. & El. 127.

And where in such case an indemnity is ordei’ed, its sufficiency will be referred to some proper officer of the court. Hartley v. Stead, 8 Moore 466; Burr v. Frethy, 1 Bing. 71; King v. Bridges, 7 Taunt. 294; 1 Moore 43.

This summary proceeding at common law affords to the sheriff all the redress the law entitles him to, cheaply and at once, and it guards against abuses which must arise from allowing the money levied upon execution to be intercepted on its way to the creditor.

We are, therefore, of opinion that the plaintiff has mistaken his remedy, and his bill can not be maintained.

The courts of common law in England have no power to issue writs of injunction. In this state, the supreme court have power to “ issue writs of injunction whenever the same shall be necessary to prevent injustice.” And this authority is by no means confined by the statute or by the practice to cases in chancery. They are used in aid of statutory proceedings, as libels for divorce, petitions for new trials, and the like; and we entertain no doubt of the power or duty of the court to avail themselves of this summary writ to protect officers against actions, commenced or threatened, in cases where it is shown to the court that reasonable doubt exists as to the duty of the officer, or the title to the property is in question and the parties refuse to give suitable indemnity, upon a summary application.

If a bill of interpleader could be maintained in a case like this, it seems tó be settled that if the plaintiff states a case in his bill which shows that one of the defendants is entitled to the debt or duty, both defendants may demur. The one upon the ground that the plaintiff has a perfect defense at law against his claim, and the other on the ground that the plaintiff has neither a legal nor an equitable defense to his claim, and has therefore no right to call upon him to interplead with a third person, who claims without right. Shaw v. Coster, 8 Paige 348. He must show that he is ignorant of the rights of the parties who are called on by him to interplead, or at least that there is some doubt in point of fact, to which claimant the debt or duty belongs, so that he can not safely pay or render it to one, without risk of being made liable for the same debt or duty to the other. Ibid.; 2 Story’s Eq. 124, sec. 821.

Here it is insisted, that by the facts stated in the bill, the money belongs to W. Barker, and he may demur for that cause. At the time when Barker’s execution was delivered to the complainant, he had in his hands the proceeds of goods attached and sold on several writs, of which Barker’s had priority. On receipt of the execution it was his duty to apply the money at once on his execution without special directions. It was the officer’s duty to apply the money, and to pay it over to the creditor on demand. Stark v. Sherwin, 1 Pick. 521. He is bound to suppose that the creditor intends to get satisfaction of his debt out of the property he has caused to be attached, unless the contrary is shown to him. Watson on Sheriffs, 184; Richards v. Gilmore, 11 N. H. 497; Hill v. Pratt, 29 Vt. 119.

The execution remained in the hands of the officer some seven or eight days, which was ample time to make the application, if time could be required; but none was necessary, and William Barker had the right instantly, on delivery of the execution to the officer, to demand of him the money. Being in the officer’s hands, it was at once held by him in satisfaction of the execution. No ceremony was required. The right to the money vested in the creditor at once.

The bill alleges that W. Barker delivered his execution to the plaintiff on the 22d of March, and on the 30th of March he demanded and received the execution from him and took it away, and kept it in his possession till the 3d of April, when he returned it. All the doubt cast upon W. Barker’s claim rests on this fact thus alleged. Notwithstanding what had occurred, as the actual payment of the money had not been made to Barker, it was competent for him, if he chose, to withdraw his execution and abandon his levy, and with it all right to the money. Assuming that to be so, it is not this case. Barker demanded and received his execution, with what view or purpose it is not said; nor is any thing said, from which it may be inferred. If done for the purpose and with the design of withdrawing it and abandoning his levy, that purpose was most essential, and rendered the act completely fatal to any future claim to the money, as against the after attaching creditors. If that was not the purpose, the act of demanding and receiving the execution from the officer was merely immaterial. If the plaintiff relied on the facts, as an abandonment of his levy, and consequently of all claim, he was bound to state that purpose explicitly and unequivocally. If he had done so, he would have shown W. Barker to have no claim whatever, and consequently not bound to interplead with any one. As it is stated, no intention to abandon the levy can he presumed, and the claim of "W. Barker is left free of any doubt whatever.

The bill should have alleged that the other defendants claim and assert, that by demanding, and receiving, and keeping his execution till after the expiration of the thirty days, for which the money was held under the attachment, said W. Barker voluntarily withdrew and abandoned his levy on said money, and all claim to the same; and that Barker denied any such abandonment. The bill would then have presented a case of apparent doubt; but the mere demand and receipt and keeping of the execution for a few days, without more, was a matter of no consequence whatever, and in no way affected the rights of any body.

If the facts stated presented a ease for interpleading, we should not feel pressed with the difficulty that the claims of some of the defendants are contingent. The bill would not be dismissed for that cause, but a decision might be deferred till the contingency was determined.

Neither do we find any difficulty in any supposed want of power of the court to take the fund out of the hand of the officer, and to control its disposition or distribution ; notwithstanding the principle that the sheriff and his deputies, when they attach goods, assume certain legal responsibilities to which the parties have a right to hold them. Whenever a bill of interpleader may be rightfully filed, the party must offer to bring tbe money into court to abide its decision, and when it is so brought into court, all parties must abide the decision of the court in respect to it.

There may probably be cases, where a sheriff may be entitled to maintain a bill of interpleader, as for instance in some cases where the law does not afford him redress by a summary application to the court, from which the execution issued. In any such case, we think there can be no question of the power of the court to compel the parties upon a bill of interpleader to settle the question by a suit, or issue, or otherwise, between themselves, and to abide the decision as to the disposal of the property.

The rules, which require the offer to bring the money into court, seem to, us founded in wisdom. It would furnish a strong motive, in many cases," to delay the payment of money by filing bills of interpleader, if a party could keep and retain the money in his own hands during the lawsuit. And we think there is no class of cases, where that consideration would apply with more force than that relating to moneys levied on execution. This offer is not made in this case, and the objection on that ground is well sustained by the authorities cited for the defendant. This defect, considering the offer to pay the money into the bank, would be regarded as merely formal.

Bill dismissed.

* Doe, J., did not sit.