Hoffman v. McBride

Interpleader. The practice as to interpleading under the 4th and 5th sections of the act of 11th March, 1836, relative to this court. THIS was an action brought to June term, 1836, 401, for goods sold and delivered. July 6th, 1836, narr. filed. On the 15th July, 1836, the defendant, under the provisions of the act of 11th March, 1836, {Stroud's Purd. 252, 6th ed.) filed an affidavit setting forth “ that the right to the money claimed in this action, is claimed by Samuel Comly, who has given the defendant the annexed notice.” “ Mr. Samuel McBride: Sir:—I hereby give you notice, that the lumber taken from the yard of Chauncey Hoffman, was all transferred by him to me for advances made, and you will pay to no other than myself. Yours, &c. Samuel Comly.” [25] Accompanying this affidavit, the defendant filed the following suggestion : “ And now, July 14, 1836, defendants disclaim all interest in the subject matter of this action, and offer to bring the amount claimed therein into court, or to pay or dispose thereof as the court shall order, defendants not denying that they owe the amount stated in the copy of book entries filed, to the real owner of the lumber so bought by defendants.” On the 5th September, 1836, the plaintiff moved for a rule on Samuel Comly, to appear and interplead in the action under the provisions of the 4th and 5th sections of the act of 11th March, 1836, relative to this court. The court granted the rule on S. Comly to appear and inter-plead, and also a rule that the defendants should pay the money into court, both which rules were complied with. The Court ordered the scire facias, and designated its form, as being proper under the latter part of the 4th section of the act, viz.: “ Therefore we command you that you make known to the said Samuel Comly that he be and appear before our said court on the first Monday of October nest, then and there to show cause, if any he hath, why the said Chauncey should not have judgment to recover against the said Samuel and Andrew the said sum of money, and have you then there this writ,” &e. The pleadings follow which further exhibit the practice.