HAYES, Ex'rx. v. JOHNSON et al., 4 Ala. 267

ORMOND, J. We agree entirely in the view taken by the late Chancellor Peck, of this case. ■ It is very clear that the bill cannot be maintained as a bill of interpleader. That only lies where two or more persons claim the same debt or duty from the complainant by different or separate interests. [Cooper’s Equity, 45; Story’s Eq.

Pleading, 237.] The bill alledges that the testator of complainant executed two notes for upwards of seven hundred dollars to one John Cavanaugh, with the defendant, Johnson, as his surety — that a garnishment issued at the instance of the defendant, O’Connell, against her testator, to answer whether he was not indebted to Patrick Cavanaugh — that after the testator’s death, the jury, upon an issue, found that he was so indebted, and judgment was rendered against her in favor of O’Connell for the debt.

It also appears that John Cavanaugh commenced suit against Johnson on the notes executed by the deceased, and obtained judgment, which Johnson paid, and, under the statute, moved against the complainant for a judgment for the amount so paid by him, as the surety of her testator.

Now it is most certain that this is not the case of two persons claiming the same debt; the claim of Johnson is founded on the the payment by him of a debt for which he was bound as the surety of the testator of complainant whilst the claim of O’Connell is founded on a judgment against the complainant by a garnishment against her testator as the debtor of a person with whom the debt paid by the surety, does not appear to have any connection whatever. Whatever, therefore, may be the relief to which the complainant is entitled, it cannot be obtained in this action.

The faets presented on the record are not a little extraordinary, and could only have been produced by the most culpable negligence on the part of the complainant, or by the fraudulent contrivance of others. It would be premature at this time to enter into an examination of the facts of the case, as the bill must be dismissed without prejudice, but it is proper to remark that no doubt can exist of the right of Johnson to recover the amount of the judgment paid by him as the surety of complainant’s testator.

The allegation that he suffered the judgment to be obtained collusive! y is positively denied, and is disproved by the facts of the case, as the judgment against him was obtained previous to the judgment on the garnishment. It is difficult, however, to resist the conclusion, that there may not have been some unfair practice on the part of O’Con-nell or his agents, in obtaining the judgment on the garnishment, and we therefore concur with the Chancellor in dismissing the bill without prejudice to any suit the complainant may think proper to institute.