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town of Greenfield, in the county of Saratoga, by summons returnable before said justice, at his office in said town, on the 6th day of April thereafter; which suit was brought to recover damages for the alleged wrongful taking by the plaintiff, from the said Norton, of a certain horse, and the said Norton in said suit claimed to recover $100 damages; that said summons was duly served upon the plaintiff, who appeared in said suit, and such proceedings were had therein that afterwards, to wit, on the 26th day of April then next, a judgment was rendered in said action by said justice, in favor of the defendant, Norton, and against the plaintiff, for $77.89, damages and costs.
And the plaintiff further alleges, on his information and belief, that prior to the recovery of said judgment in favor of the said Norton, against the plaintiff, to wit, on the 15th day of January, 1852, a judgment was recovered against said Norton, in the Supreme Court of the State of New-York, in favor of Jacob Van Demark and Helen Van Demark, for $153.38, damages and costs, which said last mentioned judgment was duly docketed in the office of the clerk of Saratoga county on the day and year last aforesaid ; that at the time of the rendition of said judgment first abovementioned, said last mentioned judgment was still unsatisfied to the amount of $75 and upwards ; that an execution against said Norton was issued, on said last mentioned judgment, to Henry H. Hathorn, then and still sheriff of the county of Saratoga, on the 27th day of April, 1853, to collect the amount then remaining due and unpaid thereon, which then exceeded the sum of $75; that on said 27th day of April, 1853, at Saratoga Springs, in said county, while said last mentioned execution remained in the hands of said sheriff and unsatisfied as aforesaid, and before the issuing of any execution by said justice on the judgment in favor of the defendant, Norton, against the plaintiff
, the plaintiff paid to the said sheriff the sum of $75, to apply on said judgment in favor of said Jacob and Helen Van Demark, and the sheriff executed and delivered to the plaintiff a receipt therefor, pursuant to section 293 of the Code of Procedure.
And the plaintiff further says, that at the time of said payment to the sheriff by him, as aforesaid, he was not indebted to the defendant Norton in any sum, or for any other cause soever, except the judgment first before mentioned ; that on the 27th day of April, 1853, notice was given, to said Norton and the said justice, of said payment so made to the sheriff, as aforesaid.
And the plaintiff further says, that afterwards, to wit, on the 7th day of July, 1853, the said justice, on the application of the said Norton, as the plaintiff is informed and believes, issued an execution, on said judgment against the plaintiff, for the whole amount thereof, to John Scott the defendant, then and still a constable of Greenfield, in said county ; that afterwards, on or about the 20th day of July, 1853, the plaintiff paid to said constable the balance due thereon, after deducting the sum paid to the said sheriff, as aforesaid, and specified in said receipt, together with the fees of the constable on said execution; that afterwards, on the 21st day of December, 1853, the said Gifford, justice as aforesaid, on the application of the said Norton, issued another execution on said judgment against the body of the plaintiff to the said defendant, John Scott, requiring him to collect the sum of $75 thereon, and in default thereof commanding said constable to take the body of the plaintiff, and him commit to the common jail in and for the county of Saratoga ; that both of the defendants refuse to recognize said receipt of the sheriff as a payment on said judgment, and that said Norton insists upon disregarding said payment to the sheriff, and has directed the constable to enforce the collection of said execution, and the said Scott threatens that, unless the plaintiff pays said sum of $75, and his fees thereon, that he will arrest the plaintiff by virtue thereof, and him commit to the common jail of the county of Saratoga. And the plaintiff alleges that said judgment in favor of said Norton has been entirely paid and satisfied since its rendition, as before stated, and that the issuing of said execution for said sum of $75 was erroneous and wrongful.
And the plaintiff further alleges, on his information and belief, that the defendant Norton is utterly insolvent, and that in case the plaintiff is compelled to pay said sum of $75 again, the same will be lost, as the same could not be collected of the said Norton.
Wherefore the plaintiff demands judgment that the said execution so issued to the said Scott, as aforesaid, on the 21st day of December, 1853, on said judgment by said justice, against the body of the plaintiff, be set aside, and that said judgment be decreed, satisfied and extinguished, and that said defendants be each perpetually enjoined from enforcing the collection of said execution, and that in the mean time, and until further ordered in the premises, the defendant Scott may, by order of this court, be restrained from enforcing said execution, and from arresting or attempting to arrest the body of the plaintiff thereon, and from all proceedings by him on said execution, and that the plaintiff may have such further or other relief in the premises as the case requires. POND, LESTER & BARTLETT,
Complaint in the nature of a bill of interpleader.'
Title of the Cause.
The plaintiff complains of the abovenamed defendants, and alleges the following facts, constituting his cause of action:
That the plaintiff is engaged in the business of forwarding and transportation of merchandise at the city of Albany, where he has a freight warehouse or depot.
That in the month of January, 1858, the plaintiff received from the defendant, A. B., of the city of NewYork, five several boxes of merchandise, to wit: [Describing them generally], consigned to the plaintiff with instructions to deliver the same to the defendant, C. D., or to his order, on payment, by him, of freight, charges,
That on the receipt of said merchandise, the plaintiff delivered to said defendant, C. D., the bills of lading thereof, and received from him the amount of the freight, charges, and expenses on said merchandise, and gave him a
1 A bill of interpleader is exhibited when two or more persons claim the same debt, duty or other thing from the plaintiff, by different or separate interests, and he not knowing to which of the claimants he ought, of right, to render the debt or other thing, fears that he may suffer injury from their conflicting claims, and thereupon prays that they may be compelled to interplead and state their several claims, so that the court may adjudge to whom the debt, duty or other thing belongs. (Story Plead., § 291.)
A mere claim is a ground of interpleader, and there is nothing in the Code which takes away the right to resort to this remedy. The remedy prescribed by $ 122 is merely concurrent. (Beck v. Stephani, 9 How., 193.)
receipt therefor, and at the same time received from said defendant written directions to deliver two of said boxes, to wit: [Specifying them), to the defendant, E. F., at his store in the city of Albany, and the balance thereof to the defendant, C. D., at his store in the city of Albany.
That on the same day, and before any of said boxes were delivered, the said plaintiff was notified by the said defendant, A. B., on his own behalf, and on behalf of the defendants, G. H. and K. L., not to deliver up or part with the possession of said goods, or any part thereof, inasmuch as they, the said defendants, claim to be still the owners of said merchandise, to wit, the said defendant, A. B., of &c., [stating what part], the said defendant G. H., of [stating what part), and the said defendant K. L., of [stating what part], and notifying the plaintiff, further, that said defendant, A. B., had, by fraud, procured the sale of said goods to him by said defendants, with the intention of cheating and defrauding the defendants out of the possession thereof, and of their property therein, and that said defendants claim that said sale was fraudulent and void, and that they were and are still the owners of and entitled to the possession of said goods.
That on the next day the said defendants, C. D. and E. F., called on plaintiff and demanded the delivery of said goods and claimed to be the owners, and entitled to the possession thereof, in the proportions above set forth, which delivery the plaintiff refused to make, and said defendants threaten to commence separate actions against him to recover such possession.
The plaintiff avers, that he is still in possession of said goods; that he claims no interest whatever, therein; that this action is brought solely to protect his own rights and