Atkinson, Appellant, against Manks & Holroyd, Respondents

Atkinson, Appellant, against Manks & Holroyd, Respondents. On a bill of interpleader, a decree that it is properly filed, is the only decree which the complainant is interested in obtaining. It is a final decree, within the meaning of the statute (1 R. L. 134, s. 9,) and the party may appeal after 15 days. Where it goes on to order a reference to a master, by consent of the parties, upon principles calculated to adjust the rights of those called upon to interplead, it will be considered a substitute for the ordinary proceeding by actual interpleader. An appeal from the final decree, necessarily opens for consideration all prior orders or decrees, any way connected with the final decree. Thus, an appeal from a decree upon exceptions to a master’s report, relative to the rights of the parties called upon to interplead, which report was made under an order of reference by consent; or an appeal from a decree allowing costs to the complainant, involves an inquiry into the decree that the bill of interpleader was properly filed ; And, consequently, admitting the decree that the bill was properly filed to be an interlocutory decree, an appeal from the decree, relating either to the exceptions or costs, brings up the decree that the bill Was properly filed. If a cause in chancery is set down for a hearing on bill and answer,“the. answer denying all the material facts alleged in the bill, it should be dismissed: So it should be dismissed, if the answer set up sufficient matter of defence, consisting of distinct facts by way of avoidance to the bill. To avoid this consequence, the complainant should reply, and give the defendant an opportunity to prove his answer. A bill of interpleader is not an exception to this rule. The nature and object of a bill of interpleader considered. It lies where two or more persons claim the same debt or duty of the complainant, by separate interests. The complainant should have no beneficial interest in the thing claimed ; .And it must appear that he cannot determine the right without hazard to himself. The complainant must make affidavit that he does not collude with either 1 claimant ; And bring the money or thing claimed into court. The amount or origin of the fund claimed, &c. is not the object of inquiry as against the complainant, except in reference to fraud or collusion on his part. These rules applied to the particular case. But the amount and origin of the fund may be material, as between those called upoh to interplead. Where one, having funds,' accepts a bill of exchange drawn by A, in favour of B, and C claims the same funds, a bill of interpleader will not lie against B and C ; because the acceptor is bound to pay at all events. But an order drawn by A in favour of B, upon another, for' A’s goods or theproceeds of his goods, in the hands of the drawee, is not a bill of exchange, nor equivalent to a bill of exchange. And if accepted by the drawee for a stated sum, he having no goods or proceeds of the goods of the drawee in his hands, he is not bound by his acceptance ; For it is without consideration. So if he accept for a sum beyond the goods or proceeds thereof, there is a want of consideration for the excess. And if A afterwards draw another order in favour of C, for all A’s funds in the hands of the drawee, and both B and C claim certain funds in the drawee’s hands, under their respective orders, as belonging to A, and covered by their respective orders, the drawee may maintain a bill of interpleader against the payees ; And this, though he may have accepted the first order for a certain amount. To consitute a bill of exchange, it should be for the absolute payment of money only. If an order be payable in goods, or out of a particular fund, as the proceeds of goods, or be in the alternative, it is not a bill of exchange. But an acceptance would be evidence of an agreement to pay, which, if without consideration, would be void, even as between the payee and acceptor ; For the consideration between the drawer and payee would not bind the acceptor. In an action upon the acceptance of an order drawn for the proceeds of goods, it lies with the payee to shew the amount of the proceeds received by the acceptor. For a general acceptance of such an order would merely be evidence thitt the proceeds of the goods, received after the date of the acceptance, were received to the use of the payee. An order or decree in chancery, entered by consent, is not the subject of an appeal, or rehearing. So of an order of reference upon which the party appealing has acted, by prosecuting the reference upon the principles prescribed by the order. If an order or decree appealed from, purport on its face to have been taken by consent of the party appealing, it will be deemed by the court above, on appeal, to have been so taken ; And they will not hear evidence upon the question whether it was so taken. If it was, in fact, not taken by consent, the party should have applied to the court below, to have the mistake in the entry corrected. If a bill of interpleader be properly filed, the complainant is entitled to have his costs allowed him out of the fund in court. And under special circumstances, it is right to allow the defendants to have their costs respectively, to be deducted from the same fund. Appeal from the Court of Chancery. Samuel Booth, a manufacturer, residing in the neighbourhood of Leeds, in England, in the month of September, 1811, commenced the shipping of manufactured goods to this country, and consigned them to William Manks, a merchant in the city of New-York, to be sold by him on commission. These shipments were continued until the mouth of November, 1819, when they ceased, in consequence of BootK’s affairs having become embarrassed. On the 30Z/t of November, 1818, Manks stated the accounts between Booth and himself, when a balance of upwards of $16,000 was found to be due to Booth, which was carried to his credit in a new account, of which he was duly adviser, and of which he approved. Subsequently to November, 1818, large consignments of goods were received and disposed of by Manks, and large remittances were made by him to Booth, on general account, but no general statement or settlement of their accounts was afterwards made. The last remittance from Manks to Booth was made on the 17th day of February, 1820. From the proofs and admissions which were made in the progress of the cause in the Court below, it appeared that upon a final adjustment of all the accounts between Manks and Booth, there remained in the hands of Manks, after the remittance of the 17Ih oiFebrua ry, 1820, a balance of property or funds belonging to Booth, to the amount of $4598,36. After Booth became embarrass-®d, some of his creditors in England pressed him for orders on his funds in this country ; and on the 3Ik day of January, 1820, he gave to Miles Atkinson, the appellant, an order on Manks for £1642 sterling, payable in the goods of Booth, or the proceeds thereof. This order was presented on the 16th day of March, 1820. On the 1st day oí July, 1820, another order from Booth, in favour of William Holroyd, one of the respondents, bearing date the 9th day of May, 1820, was presented to Manks. This order was for all the money that might be coming to Booth from any quarter in this country. On the 16th day of March, 1820, when the order in favour of Atkinson was presented, Manks had no unappropriated goods belonging to Booth, but if the $4598,36 due from Manks to Booth, were exclusively proceeds of Booth’s goods sold by Manks, then it was conceded that Atkinson was entitled to that fund by virtue "of his order. If that fund, however, was not the proceeds of goods sold by Manks for Booth, it was not disputed that, from whatever other sources it may have been derived, it was covered by the order of Holroyd. It was admitted, both by Manks and Holroyd, that $1613,-47 of that fund were the proceeds of Booth’s goods, and subject to Atkinson’s order. And Manks, accordingly, on the 19th day of August, 1820, paid that amount to Atkinson’s agents. The balance of $2984,39, was claimed both by Holroyd and Atkinson, and payment demanded by each ; and Atkinson, on the 28th day of September, 1820, commenced a suit against Manks, in the Supreme Court of this state, for the recovery of that sum. Holroyd forbade Manks to pay it to Atkinson, and also threatened Manks with a suit, to compel him to pay it upon the last order. Under these circumstances, Manks, on the 5th day of October, 1820, 'filed in the Court of Chancery a bill of inter-pleader against Atkinson and Holroyd. He stated in- this bill, that he was ready and willing to pay the $2984,39, to the party legally entitled thereto ; but that he was not able-to determine to which of them it of right belonged, as both claimed it; and he offered to bring it into Court, to be disposed of as the Court might direct, in order that he might not be involved in trouble and litigation ; and prayed an injunction against Atkinson’s suit, and that Atkinson and Hoiroyd might be decreed to interplead, and settle their respective rights. As to the origin of the $2984,39, in his hands, he stated that it was composed of $222,22, cash, borrowed by him from Booth, in England ; of $2716,28, received from the house of H. fy G. Vail, of Troy, being the proceeds of certain cloths and cassimeres which had been shipped by Booth direct to them, and the price of which had been paid to Manks, as the agent of Booth, for the purpose of being remitted or paid over to him ; and the sum of $46,39, balance of interest due to Booth. The injunction was allowed, and the money paid into the Court of Chancery, where it now remains. Atkinson, in his answer, denied that the balance in Manks’ hands was composed of the money borrowed from Booth in England, and of that received from the Vails / and alleged that those monies had been remitted by Manks to Booth; and that after the remittance of the last portion of those monies to Booth, Manks had received large sums of money as the proceeds of Booth’s goods sold by him ; and that the balance in his hands was wholly composed of such proceeds. He further alleged, that Manks, by letters to Sewall, Williams #• Co. Atkinson’s agents, had accepted Booth’s order; and that, relying upon such acceptance, he had been induced to forego efforts to obtain security from Booth. He admitted that Holroyd may have made some claim to the money in Manks’ hands, but had no particular knowledge thereof. It is not necessary to give the correspondence relied on as an acceptance of the order, the Court having decided, as will be seen, that this would not, in itself, have amounted to a binding acceptance, though absolute in its terms. The answer then insisted upon a full examination into all the accounts between Manks and Booth, so far as might be necessary to as'certain what goods, or'proceeds of goods, were in Manks5 hands, when his (Atkinson’s) order was presented, or at any subsequent period. Holroyd, in his answer, admitted that the státement of facts in Manks’ bill was substantially correct; that the sum of $2984,89, due from Manks to Booth, consisted of the items mentioned in the bill; that he had made repeated applications to Manks for payment of his order, which Manks had always evaded, on the ground that Atkinson claimed all the funds of Booth in his hands; The causé was set down for héáring by the solicitor of Manks, upon bill and answer, without any testimony having been taken ; and on the 13th day of November, 1821, the Chancellor madé his first decree. By this decree, he determined the bill of interpleader to have been properly filed ; and, at the request of Atkinson and Holroyd, Manks not objecting to it, á reference to a Master was ordered, to take and stale the account between Manks and Booth, up to the day of filing the bill, allowing proper deductions for the charges, expenses and commissions of Manks, so as to show what moneys were in his hands, applicable to the order of Atkinson, and whát applicable to the order of Holroyd. In pursuance of this order, the reference was prosecuted before the Master; and on the 29ZÁ day of March, 1822, he made his report.- The report coincided precisely with the statement of Manks in his bill, as to the balance due from him to Booth, but was in direct hostility to the bill, with respect to the sources from which that balance was derived. In the Master’s opinion, the $222,22, borrowed by Manks from Booth, in, England, and the $2716,28, received from the Vails, had been id part remitted to Booth, and the residue applied by Manks in re-pavment of advances made by hirti to Booth; so that neither of those sums constituted any part bf the $2984,89, paid by Manks into the Court of Chancery; He was accordingly of opinion that the whole of that suhi was ápplicablé to the order of Atkinson, and So reported. The report was filed on the 3d of April, 1822. The solicitor of Atkinson entered an order for its confirmation. Holroyd excepted to this report: í „ Because the whole sum in Manks’ hands was reported ¿o be applicable to the order of Atkinson ; whereas it was properly subject, and applicable wholly, to the order of Holroyd. 2. Because certain proceeds of goods sold the Vails, ánd received by Manks on the 21si of July, 1820, amounting to $750, should have been exclusively applied to the order of Holroyd. The exceptions were argued, and a rule entered by consent, that the question of costs be submitted to the Chancellor, in order that he might make a final decree in the cause. On the nth of July, 1822, a final decree was pronounced. The Chancellor allowed so much of the first exception, as is applicable to the $222,22, borrowed by Manks from Booth, and the whole of the second exception, making an aggregate of $972,22, of the fund in Court, which he ordered to Holroyd, upon his order, and the residue to Atkinson. He decreed Manks his costs, to be paid out of the fund. The appeal was by Atkinson, from so much of the decree of November 13th, 1821, as adjudged the bill of interpleader to have beenproperly filed ; so much as directs the Master to take and state an account between Manks and Booth, up to and including the 5th day of October, 1820 ; so much as instructs the Master, in taking an account, to allow proper deductions for the charges, expenses and commissions of Manks; so much of the final decree, as allows the exceptions, either in whole or in part, taken by Holroyd, to the Master’s report ; and also to so much of the final decree as awards costs to the complainant. The additional facts, so far as they are material to the points raised and decided, are stated at large in the opinion of the Court. His Honour, the Chancellor, assigned the reasons of his decree; but as his argument related principally to the decision upon the exceptions to the Master’s report, and was little more than an examination of the facts in the cause, its insertion is not deemed material. The principal questions of law, upon the above case, were, 1. Whether the bill of interpleader was properly filed. 2. Whether the reference to the Master was proper. 3. Whether the costs of Manks ought to have been allowed and deducted from the funds in Court. The cause was argued by H. Bleecker H. Sedgwick, for the appellant; and C. Graham, fot Manks, and S. Jones, for Holroyd, the respondents. For the appellant, it was argued, that the bill of interpleader should have been dismissed. Every material allegatiori Contained in it, was denied by the answer; no replication Was filed, and on the hearing upon bill and answer, the latter should have been received as true. Had Manks intended to contest its truth, he should have filed a replication, and given the appellant an opportunity to prove his answer, The bill was vexatious. The order in favour of the appellant had been virtually accepted by Manks, and there was no pretence for filing a bill of interpleader^ The reference was net proper to settle the rights of thé appellant and Holroyd• The Chancellor should have awarded an interpleader, and not a reference to a Master. At any rate, under the circumstances of the case, no costs should have been awarded out of the fund in Court. If the counsel stood committed by acting under thé decree for a reference, yet- they may go back to the decree, which declares that the bill of interpleader waá properly filed. It was not necessary to appeal from that decree wdthin 15 days. It was a final decree. (Travis v. Waters, 12 John. 500.) In the last decree, it is again declared, that the bill -was properly filed. Indeed, the first decree is connected with the subsequent ones, and is brought under review, by an appeal from the last. For Manks, it was argued, that the object of the bill of interpleader was to get rid of any controversy upon the ti-tie to the funds. From the time of the decree upon the bill and answer, Manks, who is a mere stake holder, was no longer to be considered as a party in the cauro. It was indifferent to him whether the parties interpleaded or not. Whether an interpleader or a reference should be awarded, was a matter exclusively between Atkinson Holroyd. At any rate, the order of reference was interlocutory and not the subject of an appeal after 15 days. It has all the characteristics of an interlocutory order. It does not dispose of the fund. It directs an account to be taken by a Master, who is to report with all convenient speed. It was treated as interlocutory by the counsel of Atkinson & Holroyd. They proceeded in the reference, and summoned Manks before the Master, and a rule was afterwards taken for confirming his report; and they consented to a final decree as to the costs. The appellant is estopped by his "own act, to appeal from the decree of reference. This decree was not only by consent, but was acted upon by the appellant. The bill of interpleader was properly filed. It was to avoid litigating the title to the fund with two conflicting claimants—the usual ground of this bill. The account of Manks being perfectly fair, and all opposition to it being withdrawn before the Master, his right to eosts follows . The order in favour of Atkinson, was not a bill of exchange ; and an acceptance would not bind for an amount beyond the fund to which it referred. The argument for Holroyd was principally an examination, whether the Chancellor had decided correctly upon the exceptions to the report. It was insisted, that bills of inter-pleader are set down for a hearing upon the pleadings, to see whether there is a proper case for interpleader. It is not the ordinary case of setting down a cause on bill and answer, without replication. The order is interlocutory ; and if the party mean to contest the principles of the decree, he must-appeal within the 15 days, or he is barred. Reply, It is denied, that setting down a bill of interpleader on the pleadings, differs from the ordinary case. The answer in this case sets up the specific fact, that the order in favor of the appellant had been accepted. This goes to the ' foundation of the bill. Ought not the appellant to have had an opportunity of proving it upon a replication ? In this case the order was accepted. Being so, it stands on the same footing as a bill of exchange, on the latter being absolutely accepted. Dungey v. Angove is a case precisely like this in principle. The decree was premature. The bill being denied by the appellant, the Chancellor should not have recognized its truth, till it was proved. If, as contended, Manks was out of the question, on the first decree being pronounced, the order of reference was nugatory, and therefore erroneous. It was not proper, except to ascertain the truth of the bill; and the facts reported by the Master shew that the bill was fraudulent, and that the fund was not a proper subject of interpleader. If the order was by consent, and was acted upon by the appellant, it was not intended by him as a substitute for an interpleader, to which he was entitled ; and his consent ought not to bind him beyond the scope and intention of it. An inquiry by the Master beyond the object of the order could have no effect. It is perhaps not necessary to shew that the first decree was a final one; for an appeal from the last opens for consideration all prior or interlocutory orders or decrees in any way connected with the merits of the final decree. This doctrine is essential to the proper administration of justice. That the final decree was for costs, is no objection. The statute gives us the same right to appeal from a decree, settling the right to costs, as from any other. The right was not denied in Travis v. Waters. This case also settles the distinction between an interlocutory and final decree, There was a consideration for accepting the appellant’s order, without regard to the extent of the fund. Any damage to another, or suspension or forbearance of his right, is a sufficient consideration, and will make a contract binding, ¿hough no actual benefit accrue to the party contracting. An absolute promise to accept is equivalent to an actual acceptance, without regard to the equitable circumstances between the drawer and acceptor. The acceptor cannot allege the want of effects; and though the order in this case was not technically a bill of exchange, yet it has the same effect, except in the quality of negotiability. An acceptance to pay out of a particular fund is as binding as a general acceptance. So if payable on a contingency' Could a party be relieved in equity on the ground of a mistake as to effects ? Decree that bill is properly-filed, all that the complainant seeks. Reference, by consent, a substitute for interpleader. Barker v. Wild, 1 Vern. 140. Coop. Pl. 45. Dungey v. Angove, 2 Ves. jr. 310, 311, Vid. Newl. Pr. Albany ed. 173. Jaques v. Trustees of the M. E. Church, 17 John. 548. 1 Harris, Pr 115. Anonymous, 1 Vern. 351. 1 R. L. 134. Blake’s Ch. 177 Blake’s Ch. 220, 221, 278. Blake’s Ch. 31,32. 1 Harr. Pr. 112, 117. Sholboll v. Biscoe, 1 Harr. Pr. 116, 17. Cowtan v. Williams, 9 Ves. 107. Clark v. Byne, 13 id. 386. 2 Ves. Jun. 304. 1 R. L. 134. 12 John, 500. id. 508. Pillans v. Mierop, 3 Burr, 1673. id. 1673-4. g) Per Ld. Mansfield, in Mason v. Hunt, Doug. 299. Chit, on Bills, 51. Carlos v. Fancourt, 5 T. R. 482. [MAJORITY — Sutherland, J.] Sutherland, J. A preliminary objection as taken by the respondents, to so much of the appeal as relates to the decree made on the 13th Nov. 1821. It is contended that this decree was interlocutory—not final; and that the appeal should, therefore, have been entered within 15 days after the making of the decree. By that decree, the Chancellor determined the bill of interpleader to have been properly filed. According to my view of the case, that was the material, and only material point, so far as the complainant was concerned, which the Court were called on to decide ; and the moment the decree was pronounced, the object was obtained, which the complainant sought by his bill. It is fairly to be deduced from the decree itself, that it would have ended there, had not the parties consented that the Court below should proceed in that suit, to determine the matters in controversy between them. The subsequent parts of the decree, which order a reference to a Master, and establish the principles upon which it is to be conducted, are to be considered as a substitute, adopted at the request of the parties, for an interpleader suit between Atkinson & Holroyd, to determine their respective rights to the fund in Court; and also, as a substitute for any proceedings which it might otherwise have been necessary for Atkinson fy Holroyd to adopt, to test the correctness of Manks’ statement, as to the aggregate amount due from him to Booth. "Whether the hill was properly filed. If it were necessary, therefore, for the purpose of sustaining the appeal, I should have no hesitation in saying that the decree of Nov. 13th, 1821, in so far as it decided that the bill of interpleader was properly filed, was a final decree, within the meaning of the statute regulating appeals, the merits and principles of the causehaving been deter mined by that decision. But it is unnecessary to resort to that part of the appeal at all, “ for the appeal from the last and final decree in the cause, necessarily opens for consideration, all prior orders or decrees any way connected with the final decree.” This was settled in the case of Jaques v. The Methodist Episcopal Church, (17 John. 548.) The appellant in this cause appeals from so much of the final decree as regards the allowance of the exceptions taken by Ilolroyd to the Master’s report; and also from so much thereof, as awards costs to the complainant. In determining these points, it is necessary to consider every other material point in the cause. Whether the bill of interpleader was properly filed, is "a question necessarily drawn into consideration, by the appeal from that part of the decree, which awards costs to the complainant; for, if it was necessary for him to file his bill, then his costs were rightfully awarded to him. If it was not a proper case for a bill of interpleader, then it was a proceeding in his own wrong, for which the defendants below ought to pay. The appeal from the last decree, therefore, brings before this Court, the whole merits of the cause. The first question which I shall discuss, is, whether the decree of the Chancellor was erroneous, in determining the bill of interpleader to have been properly filed. It is contended on the part of the appellant, that his answer denied every material allegation in the bill; that no replication having been filed to the answer, it must he taken as true, throughout; that the complainant below, having brought the cause to hearing upon bill and answer only, the evidence before the Chancellor shewed the bill to be false, and instead of decreeing that it was properly filed, he should have dismissed it with costs. Nature and object of bill of interpleader. rÍ!Jhe a™e^° tions therein, It is a well settled rule, that there cannot be a decree against an answer upon the facts charged in the bill and denied in the answer, unless the bill be supported by two witnesses, or one witness and circumstances. (2 Atk. 19. 1 Bro. Ch. Cas. 52. 1 John. Ch. Rep. 459.) It is also a well established principle in Chancery proceedings, that a distinct fact set up in answer by way of avoidance, is to be taken as true, without proof, unless the complainant, by a replication, put the fact in issue, and give the defendant an opportunity to prove it. (Green v. Hart, 1 John. Rep. 590, per Spencer, J.) If the answers in this case, therefore, clearly and unequivocally deny those allegations in the bill, upon which alone, it can be sustained; or, if they set up new matter in avoidance of those allegations, then the appellant is right in saying that the bill shouhl have been dismissed. This brings us to the consideration of the material object Of a bill Of interpleader. , It is defined to be, “ a bill exhibited, when two or more persons claim the same debt or duty from the complainant by different or separate interests ; and he, not knowing to which of the complainants he ought, of right, to pay or render it, fears that he may be damaged by the defendants, (as by paying his money to a wrong hand) and, therefore, exhibits his bill of interpleader against them, praying that the Court may judge between them, to whom the thing belongs, and that he may be indemnified. “ It claims no right in opposition to" those claimed by the persons against whom the bill is exhibited, but only prays the decree of the Court, to decide between the rights of those persons for the safety of the complainant.” (Cooper’s Equity, Plead. 456. Harrison’s Ch. Pr. 96. Mad. Ch. 172-3.) The nature of the allegations, therefore, in every bill of interpleader are, 1. That two or more persons have preferred a claim against the complainant ; 2. That they claim the same thing; 3. That the complainant has no benefi i-il interest in the thing claimed ; and 4. That he cannot d' e o-nc, without hazard to himself, to which of the defendants the thing of right belongs. Amount of fund not the subject of inguiry ; Except to shew fraud. Whether material allegations denied. Answer examined. To prevent this proceeding from being resorted to foi the purpose of giving an advantage to one of the claimants over the other, the complainant must annex to his bill an affidavit, that there is no collusion between him and any of the parties ; and he must bring the money or thing claimed into Court, so that he Cannot be benefitted by the delay of payment, which may result from the filing of his bill. It seems to me, from this short consideration of the nature and object of a bill of interpleader, that the amount of the fund or matter in the hands of the complainant, upon which hostile claims are alleged to have been made, cant never be a substantial object of inquiry upon such bill. That amount must be taken to be as stated by the complainant, and cannot be controverted by the answers, for the purpose of having it adjudicated upon. It may, unquestionably, be denied by the answer, for the purpose of shewing fraud or collusion, on the part of the complainant, and, I humbly conceive, for no other purpose. Are, then, the material allegations in the bill denied by this answer of Atkinson ? It is not pretended that they are denied by Holroyd ; for he expressly admits, “ that the. statement of facts contained in the complainant’s bill, is correct and accurate.” Does Atkinson deny that he and Holroyd have both preferred claims against Manks ? He expressly admits that he obtained from Booth the order of Jan. 8, 1820, upon Manks for £1642, as set forth in the bill; that he forwarded the same to- Messrs. Sewall, Williams Co. of Boston, who presented the same at the time stated in the complainant'1 s bill. He admits that a suit upon the order had been commenced against Manks by his attorneys, the Messrs. Sedgwicks. In relation to Holroyd?s claim, he admits that the complainant, Manks, in the early part of August, 1820, informed Sewall, (Atkinson’s agent) that an order had been presented to the complainant from Booth, for all Booth?s property in the hands of the complainant, but does not mention in whose favour the order was drawn. In another part of his answer he says, “ he thinks jit probable that Holroyd may have made some claim to the proceeds of goods shipped by Booth to the complainant;” but he has no particular knowledge of this, Iti no part of his answer does he deny, what is expressly alleged in the bill, that Holroyd had forbidden Manks to pay over the fund to Atkinson, and had threatened him with a suit upon his own order. The fact, therefore, that hostile claims to the same matter or thing, have been made upon Manks, by p'ersons capable of prosecuting those claims, is, not only not denied, but is admitted by the answers of both defendants. I sáy the same matter or thing ; for the balance of Atkinson’s order, exceeding the amount in Manks’ hands, and the whole of that amount being claimed as applicable to that order, it is apparent, that if any thing is claimed under Holroyd’s order, it must be the same thing that is claimed by Atkinson. It is not pretended by the answers, that Manks has any interest in tiie controversy, or is any thing more than a mere stakeholder, unless his character is changed by the alleged acceptance of Atkinson’s order, which I shall hereafter consider. Is the right, then, of Atkinson to the fund in qüestíori so clear, upon the bill and answer, that Manks must have known that he Could incur no hazard by paying it to him ? This question is sufficiently answered by the fact that Holroyd had forbidden him to pay it to Atkinson, and threatened him with a suit tó recover it upon his own order. After that, he was not bound to exercise any judgment upon the Subject. The Lord Chancéllór, in Langston v. Boylston, (2 Ves. Jun. 109,) says, “ á party claiming no fight in the subject, is doubly vexed by having two legal processes going on against him, in the names of different persons, at the same time ; he comes upon the most obvious equity to insist that those persons claiming that, to which he makes no claim, should settle that contest among themselves and not with him.” He remarks, that “ it may be said in all cases of interpleader, ás it hás been said in this 5 ‘ Stand the action ; if A proceed first, and you have a good defence against him3 that puts an end to his claim j if A succeed, that is a defence against the claim of B.' That is precisely the situation m. which the plaintiff ought not to be placed.” The origin of the fund not material. That was a question between parties claiming the iqntL Whether order was accepted. If a bill of exchange, and accepted, bill 'A''mid have Be in dismissed. But it is said that Manks' allegation in his bill, that the sum of $2938,50, in his hands, arose from money loaned to him by Booth in England, and from payments made to him as Booth's agent, by H. & G. Vail, of Troy, and that no portion of that sum is the proceeds of goods shipped to him by Booth, is denied in the answer •, that the Chancellor, therefore, at the hearing of the bill and answer, should have dismissed the bill, it having been proved false in so essential a point. If the view which I have already taken of the nature and object of a bill of interpleader, be correct, it follows, that the manner in which the fund in Monk's hands was composed, whether of the proceeds of Booth's goods or of money borrowed from Booth, could never be the subject of consideration, or inquiry, in determining whether the bill of inter-pleader was properly filed. That was the matter in controversy between Atkinson and Holroyd, the matter which • they were to discuss, if they should be decreed to interplead; the very matter, the discus- ■ sion and decision of which, Manks ought to get rid of by his bill of interpleader. Whether the allegations in the bill, therefore, upon that point, were true or false, is perfectly immaterial, except, as I have before remarked, upon another point, as affording evidence of fraud or collusion on the part of the plaintiff. But again: it is strongly urged that it is apparent upon the bill and answer, that Manks accepted the order in favor of Atkinson j and that the bill should have been dismissed. upon that ground; I concur in the opinion, that if the order was a bill of exchange, and there was an absolute acceptance of it, by Manks, the bill should have been dismissed : because, by the acceptance, Manks would be liable to pay the order at all events. Atkinson's right, therefore, to enforce payment from Manks would be clear beyond all doubt, whether the fund in Manks' hands was the proceeds of goods or not. In that question, therefore, Atkinson would cease to have any int-erest. The claims of Atkinson and Ilolroyd would not then he in collision. The one would rest on the ground of. the accepance; the other on the ground that Manks hadfunds in his hands belonging to Booth. In such an event there could be no pretence for awarding an interpleader between them. .If Manks accepted the order, and it was equivalent to a bill of exchange, he ceased to be a mere stakeholder, and became a party in interest to the controversy; for being compelled to. pay Atkinson at all events, he was deeply concerned in shewing that the funds in his hands were proceeds of goods. for unless he could shew that, he would be compelled to pay Holroyd’s order also. But was not a bill of exp change, ,. Acceptance binds only to extent or-pa“ase‘ shew extent, Acceptor liable on his ^ent*1 aoniy' whereof the waa proof. But this was not a bill of exchange. It was not an order for the payment of money only, which is an indispensable requisite in a bill of exchange. Besides : it was in the alternative, for goods or the proceeds thereof. If it had not been in the alternative, but had been for £1642, proceeds of goods, it would not have been a bill of exchange, because payable upon a contingency and out of a particular fund. (Ch. on Bills, 37-8. 3 Wils. 213.) Admitting, then, that Manks did accept the order: that his ?/ r letters to Sewall, Williams fy Co. were equivalent to the ordinary mode of accepting a bill of exchange, which is by writing, “ accepted,” upon the bill, and signing the name to it, it amounted to no more than an agreement or promise on his part to pay the order according to its tenor; that is, to pay it in Booth’s goods, or in the proceeds of them. If he refused to pay, Atkinson could not sue him, as the drawee; of a bill upon his acceptance ; but only upon his agreement, or contract to pay; and his acceptance could be used as evidence of such agreement or contract. But to sustain his action, it would be necessary for him to aver and prove that Manks had in his hands either goods, or the proceeds of them, belonging to Booth ; for, until that was- proved, neither a violation of his agreement, nor a consideration for his promise, would be shewn. The order being to pay from that fund only, his acceptance could not make him liable beyond it. (Kyd on Bills, 58. Maker v. Massias, 2 Bl. Rep. 1072. Carlos v. Fancourt, 5 T. Rep. 482. Alves v. Hodgson, 7 T. Rep. 237, Chit. on Bills, 12, 63, 154. Kyd on Bills, 74.) If sb order, toaMl'oftxchange, is flrawn upon another, ■ and lAvithoutToZ ?ideration, it is ^nuduw pacation betireen the drawer & pD^bind^0^ ¿peeptor. Or suppose Atkinson’s action was for money had and received to his use; Manks’ acceptance would be evidence, that whatever monies had come to his hands from the proceeds of Booth’s goods, since the date of the acceptance, belonged to Atkinson, arid were received to his rise. But the main question whether any,' and if any, what amount of such pro-' ceeds had, in truth, copie to his hands, would be left to he made out by Atkinson in proof, before he could recover. Now, that is" the precise question upon which the respective rights of Atkinson and Holroyd dependí ‘ If the funds in Manks’ hands, are the proceeds of goods, they belong to Atkinson f if'not, they belong to Holroyd. Whether they are the one or the other, is á matter of indifference to Manks’. He, therefore, prays that they may be compelled to settle it between them. And whether he has accepted the order of Atkinson or not, does not, in my judgment, affect his right to such a decree. " But it is sajd, that the letters from Manks to Sewatt, Williams & Co. of the Vjth of March, and the 2d; 0f june j 920, are moré than a bare acceptance of the or- ’ , . ■ • 1 der; that they amount to an absolute, unconditional promise to pay £1000 upon that order. Waiving the" question of fact—could a recovery be had against Manks, upon süch á ;n truth, he had" no funds belonging to Booth, being the proceeds of goods," either in law or equity, unless Au kinson could show either fraud or special damage ? The or-not beiiig a bill of exchange, the consideration which between Booth and Atkinson could not enure to th§support of the promise by Maníes. Atkinson would, there! fore, be compelled to ávér and prove, that Manks had in his hands either goods or the proceeds of goods' belonging to Booth, to the amount of £1000," or he could n.ot recover, the promise being without consideration, and therefore void. Even by such a promise, therefore, Manks would not he precluded from asking the Court of Chancery to compel AÜ kinson and Holroyd to interplead, Upon every view of the case, therefore, I think the Chan- , cellar tvas right in determining, upon the pleadings, that1 ttys Ml was properly filed. appeal °* reheamg by consent, and^arty acted under it? Whether the funds were the proceeds of Booth’s goods, Whether the decree of November 13th, 1821, was erroiieous, in ordering the Master, upon the reference, “ to take and state the account between Manks and Booth, up to the tirpe of filing the bill,” and in directing him “ to allow proper deductions for the charges, expenses and commissions of Manks,” 1 do not consider open for inquiry. The decree, in every thing that respects the reference, purports to have been made by consent. If the Chancellor was mistaken in supposing Atkinson’s counsel to have consented to it, application should have been made to him to have the mistake, as to the consent, corrected. That course not having been pursued, this Court cannot try the question whether there was a mistake or not, We must take the fact to be as stated in the decree, and entirely disregard the suggestion of r mistake. No appeal or re-hearing lies from a decree made by consent. ’ (2 Mad. Ch. 577. Bradish v. Gee, Ambl. 229.) But, independent of the consent, Atkinson is precluded from objecting to the order of reference, by having acted under it. If that order established principles, or gave instructions to the Master, which he thought erroneous, he should have appealed from it at once, instead of prosecuting the reference. After having tried the practical operation of those principles and instructions upon his rights, it is too late for him to object to them. Any error that the Master may have made in the application of those principles, in the enquiry before him, is open for correction upon the coming in of his report. But the principles, themselves, are the law of the Master, necessary to be settled before he enters upon the reference, and therefore admitted to be, settled by the parties who prosecute and conduct the reference. (Vid. 9 John. 468, per Spencer, J.) The next point which I shall consider is, whether the decree is erroneous in deciding that $972,22, of the fund in • ,■ i r t> 7 • j 'j fjourt, are not the proceeds ot. Booth’s goods, and are therefore covered by the order of Holroyd, ' [Here his Honour examined the evidence, and concluded, that the decree of the Chancellor was erroneous, in allówing so much of the first exception to the Master’s report 'as related to the $222,22, borrowed by Manks from Booth ; but that the decree upon the exceptions was right in all other respects.] The only remaining point relates to the costs. The bill of interpleader having been properly filed, it necessarily follows that the complainant is entitled to his costs out of the fund in Court. This is obviouslyjust and equitable, and so are all the authorities since the case of Hendry v. Key, (1 Dick. 291. Vid. 6 Ves. Jun. 418. 9 id. 107. 1 Mad. Ch. 148.) Under all the circumstances of this case, I see nothing improper in allowing the costs of Atkinson and Holroyd, also, to be deducted from the fund, neither of them having been entirely right or entirely wrong in their claims. This was a matter of sound discretion with the Chancellor, and I think that discretion has been properly exercised. Upon the whole case, therefore, I am of opinion, that the decree of the Chancellor should be affirmed, except so far as it relates to the £¡50, and that, with respect to this, it should be reversed. The rest of the Court were unanimously of the same opinion, except as to the disposition of the fund between Atkinson and Holroyd. Savage, Ch. Justice, went into the evidence, at large, on this point, and concurred with the Master in his report, being of opinion that Atkinson was entitled to the whole fund; and that, consequently, Holroyd should be denied his costs. But as the discussion upon this point was a mere examination of facts, and was not supposed by the Judges to involve any one question of law, it is, for that" reason, omitted.