Bender v. Sherwood , 15 How. Pr. 258 ( 1856 )

Harris, Justice.

“ When the answer of the defendant admits part of the plaintiff’s claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and enforce the order as it enforces a provisional remedy.” This is the provision under which the plaintiff claims the summary interference of the court. The remedy is extraordinary and severe. It should only be granted in a case clearly within the terms and spirit of the statute. This is not such a case. The defendants do not “ admit a part of the plaintiff’s claim to be just.” All they admit is, that they have in hand, the fund which the plaintiff seeks to have paid over to him, but they state that they are ignorant whether that fund belongs to the plaintiff or the administrators of Parks. Under these circumstances, they ask that they may be permitted to pay the money into court, or that the court may make some order in respect to its application. In other words, without admitting the right of one party or the other to the fund in question, they state the facts, and submit the question to the court.

Had this fund been the only subject of controversy, it would have been a proper case for interpleading, under the provisions of the 122d section of the Code. But, as the plaintiff claims judgment for the whole amount of the draft, the defendants, in order to protect themselves from further liability, were bound to answer; and I do not understand that a defendant can, under the statute referred to, have another person substituted in his place, as to a part of the plaintiff's demand, and interpose a defence as to the residue. Before the court can make an order that another person be substituted, it must appear that the defendant is entitled to be discharged from all liability upon any part of the plaintiff’s demand. The defendants, therefore, had no alternative but to answer.

It may be, that upon the trial, the-court will think it so clear that the plaintiff is entitled to the fund, that it will direct it to be paid over at once. It may be, too, that it will be thought proper to require the administrators -of Parks to be made parties to the action, before the question is finally determined. However this may be, the defendants are entitled to the judgment of the court, upon the case they have made by their answer. The motion, therefore, must be denied, but it is without costs.