amount to the coupons on these $3,000,000 and present them to the governor, they ought to have the assignment of this statutory lien. Of course, many of these coupons having a long time to run, you can buy at a discount. It would not be, as some counsel say, as if all this sum were due now. Much of this is only due along through future periods. 1 might make a few observations as to the manner in which the parties could get together and do right as between themselves. 1 think the honor of the state of Missouri will make her do as nearly right as possible, and if the parties complainant accept this opinion-and if they do not they can appeal after a final decree -1 hope they and the respondent will be brought together so that the equitable principle which is involved in the act of 1855, (which I still think is in existence,) that the state shonldbe fully indemnified and theRe parties made to lose as little as possible, will govern tho ClLse. Thtl motion for an injunction is overruled.
HARRIS and another v.
(Oircuit Court, S. D. New York. January 27, 1882.)
PRACTlCE-INTERPLEADElt-DEPOSIT OF AMOUNT CI,AlMED.
The provision of section 820 of the New York Code of Civil Procedure, whereby a defendant ap;ainst whom an action upon contract is pending may, before answer, upun proof that a person, not a party to the action, makes a demand against him for the same debt, be discharged from liability to either by paying into court the amount of the debt, has been adopted into the practice of the United States courts for the districts of New York, under section 914 of the Revised Statutes of the United States.
SAME-JURISDICTION-SUBSEQUENT ACTION IN STATE COURT.
The jurisdiction of a United States comt in an action pending in it, after notice of motion by defendant for an order to substitute as defendant a person making a demand for the same debt as that sued for in the action, and to release the defendant, upon his paying into court the amount of the debt, from liability to either that person or the plaintiff, cannot be affected by a subsequent action brought in a state court by such person against the defendant.
James S. Stearns, for plaintiffs. Lauterbach et Spingarn, for defendants. Moore, Low Sanford, for Hanover Bank. BLATCHFORD, C. J. The defendants, on behalf of the 'Plaintiffs, Bold to the Hanover National Bank a promissory note, not overdue,
>lfReported by S. Nelson White, Esq., of the New York bar.
and received from that bank the purchase price, and delivered the note to the bank. 'rhe defendants gave to the plaintiffs a check on a bank for the proceeds of the note, less $3.77 commission. Before the check was presented to the bank or paid, the Hanover Bank, having ascertained that when the note was sold the makers of it, a firm in New Orleans, had suspended payment, notified the defendants of the fact, and tendered the note back to them, and demanded back the pnrchase money. Thereupon the defendants stopped the payment of the check. The plaintiffs, citizens of Pennsylvania, then brought this suit in this court against the defendants, citizens of New York. The Hanover National Bank appears by the papers to be a corporation doin'g business in the city of New York, and having its place of business in that city, and to be a banking association created by and under the laws of the United States. It is, therefore, to be regarded as a citizen of New York. This suit is a suit on the check which the defendants gave to the plaintiffs, and the amount sought to be recovered is $1,486.41, with interest from November 29, 1881. The amount of the claim of the Hanover Bank against the defendants is $1,490.18, with interest fl'om November 80, 1881. This suit was commenced December 19, 1881. It is provided, by section 820 of the New York Code of Civil Procedure, that a defendant, against whom an action to recover upon a contract is pending, may, at any time before answer, upon proof by affidavit that a person not a party to the action makes a demand against him for the same debt, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt; and that the court may, in its discretion, make such an order. This is a proceeding in a suit at law to substitute one defendant for another. It is a proceeding adopted by section 914 of the Revised· Statutes. The defendants, before answer, served on the Hanover Bank and on the attorney for the plaintiffs, on the tenth of January, 1882, the proper papers, with notice of an application to be made to this court on the thirteenth of January to substitute the Hanover Bank in the place of the defendants, and to discharge the defendants from liability to either the plaintiffs or the Hanover Bank concerning the claim or debt mentioned in the complaint herein, on the defendants paying into this court $1,486.41. The application was ad· journed by consent from .J anuary 13th to January 20th, and was made on the latter day. On January 19th or 20th the Hanover Bank
HARRIS V. HESS.
commenced a suit against the defendants in a court of this state to recover the said $1,4-90.18, with interest from November 30, 188!. The defendants are willing to pay into court $1,490.18, with interest from November 29, H18!. Both the plaintiff!:! and the Hanover Bank oppose the application. The defendants have the money which they received from the Hanover Bank. It is claimed by each of the two parties. It is claimed directly by the Hanover Bank as the money which it paid to the defendants; and, although the suit in this court is brought on the check, yet it is really a suit to recover the money which the Hanover Bank paid to the defend[1nts as being the money of the plaintiffs. The plaintiffs can be in no better position,as regards the real transaction, than if no check had been given. The check was given under a mistake of fact. The rights of the plaintiffs as against the money and the defendants, and as against the claim of the Hanover Bank to the money, are no different now from what they would be in a suit by the Hanover Bank against the plaintiffs to recover back from them money paid by the plaintiffs to them directly as the purchase price of the note. Whether the plaintiffs or the Hanover Bank have the better right to the money is a question not to be settled on this application. The defendants are not questioning the title of the plaintiffs to the note; and, as to the money, the defendants nre mere stakeholders. The case is clearly one within the state statute. The application has relation back to the time when notice of making it was served, and the bringing of the suit in the state court subsequently by the Hanover Bank cannot affect the jurisdiction of this court to grant the application. It is granted, and the order to be made will be made nunc pro tunc, as of the day for which the application was first noticed. The amount to be deposited in court will be $1,490.18, with interest from November 29. 1881.
ANDERSON v. SHAFFER.(Circuit Court, 8. D. Ohio, E. D.
915, REV. ST,-CONSTRUCTIVE SERVICE. Under section 915, Rev. St., in actiolls for the recovery of money only, the United States courts are authorized to issue attachment and garnishee only where the court has acquired jurisdiction of the person of the defendant. As to what effect the adoption by the court, by rules, of the attachment laws of the state in which it is held would have, where such laws authorized constructive service in such cases, qure'1'6. 2. SAME-SECTIONS 739, 915, REV. ST.-CASE STATED. In an action for the recovery of money only, on a promIssory note, commenced in the southern district of Ohio, by a resident of that state, against a resident of the state of the defendant not having been found and served within the district, but the petition alleged that the defendant had property and credits within the districts, and attachment and garnishments were issued therein, held, (1) that under section 739, Rev. St., the action could not be maintained in that district; and (2) that under section 915 the court had no power to issue attachments or garnisJ' "ta.
Motion to Dismiss Attachment. H(11'rison, Olds If Marsh, for dete H:a.nt. F. W. Wood, for plaintiff. SWING, D. J. The record shows that on the sixteenth day of July, 1881, the plaintiff filed his petition in this court alleging that he was a citizen of the United States, and of the eastern division of the southern district of Ohio; that the defendant, on the fifteenth day of October, 1877, at Kansas City, in the state of Missouri, made his promissory note, and delivered the same to Susan E. Wagenhols, and thereby promised to pay said Susan E. Wagenhols, or order, $2,000, with interest from date at the rate of 8 per cent. per annum; that afterwards, and before the maturity of the note, the said Susan E. Wagenhols, for a. valuable consideration, indorsed the same, and transferred it to the plaintiff, who is now the legal holder and owner thereof, and sets out a copy of the note, with the indorsements thereon; that the note is now due and unpaid; that said defendant has property and rights in action in the eastern division of the southern district of Ohio which the plaintiff seeks to seize by attachment, and subject to the payment of his claim; and plaintiff asks judgment on said note against the defendant for $2,000 and interest. On the sixteenth day of July, a summons was issued upon the petition, directed to the marshal, commanding him "to summon
"'Reported by J. C. Harper, Esq., of the Cincinnati bar.