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An Historical and Critical Analysis of Interpleader

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An Historical and Critical Analysis of Interpleader University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 1964 An Historical and Critical Analysis of Interpleader Geoffrey C. Hazard Jr. University of Pennsylvania Carey Law School Myron Moskovitz Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Law Commons, Civil Procedure Commons, Common Law Commons, Dispute Resolution and Arbitration Commons, Economic History Commons, Economic Policy Commons, Ethics and Political Philosophy Commons, Jurisprudence Commons, Law and Economics Commons, Legal Commons, Legal History Commons, and the Legal Theory Commons Repository Citation Hazard, Geoffrey C. Jr. and Moskovitz, Myron, "An Historical and Critical Analysis of Interpleader" (1964). Faculty Scholarship at Penn Law. 1069. https://scholarship.law.upenn.edu/faculty_scholarship/1069 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. An Historical and Critical Anlaysis of Interpleader Geoffrey C. Hazard, Jr.* and Myron Moskovitzt The equitable remedy of interpleader .. depends upon and re- quires the existence of the four following elements, which may be re- garded as its essential conditions: 1. The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. 2. All their adverse titles or claims must be dependent, or be derived from the same source. 3. The person asking the relief-the plaintiff-must not have nor claim any interest in the subject-matter. 4. He must have incurred no independent liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy, Equity Jurisprudence § 1322 (1883) rflHE ESSENTIAL IDEA of interpleader seems simple enough: A person Confronted with conflicting demands that he do or pay something ought not to be liable twice.' In medieval and renaissance England the typical case was that of a bailee holding chattels as security for the per- formance of a promise by one bailor to another and in doubt whether the promise had been performed, and therefore in doubt as to whom to make redelivery.' In the nineteenth century the cases most typically arose out of commercial transactions, for example where a carrier, broker, or warehouseman found himself holding goods claimed on the one hand by a seller attempting to rescind and on the other by the creditors of a buyer who had become insolvent.8 Today, the standard case of inter- pleader is the insurance company confronted by rival claimants to the * Professor of Law, University of Chicago; Administrator, American Bar Foundation. t LL.B., 1964, University of California, Berkeley. 1 See, e.g., 2 STORY, EQurry JURXsPRUDENCE § 806 (4th ed. 1846): "[Tlhe jurisdiction of Courts of Equity, to compel an interpleader ... is properly applied to cases, where two or more persons severally claim the same thing . from another person, who . not knowing to which of the claimants he ought of right render the debt or duty claimed ... fears, that he may suffer injury from the conflicting claims of the parties." Rule 22 of the Federal Rules of Civil Procedure, the most widely adopted current formulation of the interpleader rule, in principal part provides more austerely that: 'Tersons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability." 2 See Rogers, Historical Origins of Interpleader, 51 YALE L.J. 924 (1942). 8 See, e.g., Lowndes v. Cornford, 18 Ves. Jr. 299, 34 Eng. Rep. 330 (1811). INTERPLEADER proceeds of a life insurance policy.4 In each of these classes of cases the courts in their time have ordinarily provided a remedy, usually without much difficulty and often without much discussion. If a procedural rule such as the one of interpleader had to answer only for a typical case, most discussions of the rule, and certainly this one, would be exercises. Yet life heaves up atypical situations, and from them stem atypical cases about which something has to be done. The issue then is not whether the rule is adequate for ordinary cases, but whether it is supple enough and precise enough to afford fair guidance for disposition of the extraordinary case. Our place of beginning in this paper is the supposition that the traditional doctrines concerning inter- pleader are in a measure inadequate in this sense. More particularly, we find two related weaknesses: First, the formulation of the conditions under which interpleader ought to be allowed is so indefinite as to beget confusion; second, partly because of this confusion, the contemporary judicial resolution of unusual interpleader situations is at times con- founded by false doctrinal puzzles. It should be said at once that most of the difficulties with interpleader from a practical point of view have been removed by legislation. There were, of course, a number of reforms in the nineteenth century.' And under the impetus of the indefatigable Zechariah Chafee, Jr. of the Harvard Law School, the Federal Interpleader Acte and Rule 22 of the Federal Rules of Civil Procedure have made the remedy of interpleader easily available without procedural caviling in a broad range of cases.7 Nevertheless, there remain practical difficulties even in jurisdictions that have adopted the Federal Rules, for Rule 22, as we shall indicate, is indefinite in certain important respects. Those jurisdictions that retain the code version of interpleader still encounter many of the old troubles. Hence, some analytical work remains to be done, and we shall attempt it here. Moreover, these analytical problems are aggravated in some measure by historical considerations. The first attempts at definition of the interpleader remedy occurred in precedents of the late eighteenth and the early nineteenth centuries, precedents that manifest not only un- 4 The case best known is no doubt New York Life Ins. Co. v. Dunlevy, 241 U.S. 518 (1916). GE.g., Interpleader Act of 1831, 1 & 2 Will. 4, c. 58; New York Code of Procedure § 122 (1851). For the development of statutory provisions for interpleader with particular reference to New York, see Frumer, On Revising the New York Interpleader Statutes, 25 N.Y.U.L. Rv. 737 (1950). 0 28 U.S.C. §§ 1335, 1397, 2361 (1958). 7 Chafee, Modernizing Interpleader,30 YA=E L.J. 814 (1921), is the principal monograph. Others appear in 41 YAlE L.J. 1134 (1932); 42 YALE L.J. 41 (1932); 45 YAME L.J. 963 (1936); 49 YAL LJ. 377 (1940); 56 HARV. L. Ray. 541 (1943); 56 HARv. L. Rav. 929 (1943). CALIFORNIA LAW REVIEW [Vol. 52: 706 appealing preferences in policy but plain lapses in systematic thought as well. Later law and present doctrine remain saddled with the burden of these cases. Our historical effort is intended to lighten that burden. The argument in these pages is as follows: First, until the end of the eighteenth century there was no settled body of rules concerning the conditions under which interpleader might be available to a party who found himself confronted with competing claims. The course of the Court of Chancery consisted of an accepted tradition of practice and a few general precepts. The rules that came to be accepted in the nineteenth century as the rules of interpleader were developed in a dozen or so English decisions between 1790 and 1840 which upon reexamination look unconvincing. Second, the expressions of opinion in the earlier English decisions were thereafter compressed into a black-letter mold that was at the same time simplistic and distorting. In part this process occurred in the devel- opment of doctrine in the nineteenth century cases. In part it occurred in the work of the text writers. Specifically, the four supposed "essential elements" for maintaining interpleader propounded by Pomeroy in his treatise, Equity Jurisprudence,' are the product of uncritical reading and uncritical thinking. This process of compression appears in retrospect to be the consequence of the legal point of view, widely encountered in the nineteenth century, that combined a reverence for precedent with an insensitivity to the realities of history; all cases were read as though they were decided aright, and at about the same time. If it is recognized that the early cases were not all decided at the same time, and the assumption is indulged that judges in the past were as puzzled, as prone to rhetorical expedient and as occasionally slipshod as they are now, the precedents appear of less determinate authority. Indeed, it seems not too much to say that one can advance as far by considering the problem of interpleader as an original proposition as by assuming that any part of the traditional doctrine of interpleader makes really good sense. Third, and here we proceed analytically rather than historically, a satisfactory statement of the conditions under which interpleader ought to be allowed is no simple task. The approach that seems most effective, though perhaps not most direct, is by a series of propositions which indicates that the strength of the interest in granting the man in the middle a way out of his dilemma is determined by the kind of dilemma he is in and how he got there. We shall undertake to state those proposi- tions in the concluding portion of the paper. We begin with the historical account. 8 PowFRoy, EQun" JURisPRUDENCE § 1322 (1883). 1964] INTERPLEADER I INTERPLEADER BEFORE 1790 A. Common Law Interpleader There was a common law remedy of interpleader that apparently found its widest use in the fourteenth and fifteenth centuries.
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