delivered the opinion of the court:
The principal question presented by the assignment of errors and argument of counsel in this case is whether the superior court erred in overruling appellants’ demurrer to the bill of interpleader.
The first requisite of a bill of interpleader is, that it must show that the defendants are claiming the same debt, duty or thing from the complainant. (Cogswell v. Armstrong, 77 Ill. 139; Platte Valley Bank v. National Live Stock Bank, 155 id. 250; Morrill v. Manhattan Life Ins. Co. 183 id. 260.) Appellants contend that the bill in this case is fatally defective because it does not show that they are claiming the same debt or duty that is claimed by Rein or the drawee banks. It is therefore necessary to determine what is claimed by the respective defendants to the bill.
Under Rein’s contention that the endorsements on the checks were authorized or ratified by Rauch & Co. appellee occupies the position of debtor towards Rein, (Woodhouse v. Crandall, 197 Ill. 104,) and Rein is claiming a debt from appellee which was created by depositing the checks and receiving credit therefor upon his deposit account. Under appellants’ contention that the endorsements were forged, the drawee banks stand in the relation of debtors to appellants, (Munn v. Burch, 25 Ill. 35; Gage Hotel Co. v. Union Nat. Bank, 171 id. 531;) and appellants are claiming debts ■ from the drawee banks which were created by a demand for the payment of checks drawn by depositors of those banks, payable to the order of appellants. The defendant banks are not claiming any debt from appellee, but a duty to defend the suits brought against them by appellants and a liability on the part of appellee to reimburse the defendant banks for such sums as they may be required to pay in satisfaction of judgments rendered in those suits on account of the eight checks in question.
The bill does not allege that appellants are asserting any claim whatever against appellee for any debt, duty or other thing. So far as appellants are concerned, appellee is a perfect stranger to the transaction through which appellants claim the debts against the drawee banks, and the fact that the drawee banks, relying upon the endorsements of appellee’s name on the checks, have paid over to appellee the money called for by those checks and are preparing to enforce the liability against appellee upon those endorsements in case recovery is had upon the checks in the suits brought against them does not change the nature of appellants’ demand against the drawee banks, nor substitute the liability of appellee for that of the drawee banks upon the debts claimed by appellants. First Nat. Bank v. Pease, 168 Ill. 40.
It is therefore apparent that appellants are not claiming the same debt, duty or other thing that is claimed by Rein or by the drawee banks, and the bill is in this respect fatally defective as a bill of interpleader.
Appellee urges, however, that the bill can be maintained upon the theory that the appellants have a cause of action against it if the endorsements of the firm name on the checks were forged. Any right of action that appellants may have against appellee arises from the fact, if it be a fact, that they never transferred the title to the checks to any one, and when appellee surrendered the checks to the drawee banks and received the proceeds thereof the transaction was an unlawful conversion of appellants’ property, for which they might maintain an action of trover against the appellee, or might waive the tort and bring suit in assumpsit for money had and received for their use. Talbot v. Bank of Rochester, 1 Hill, (N. Y.) 295; Robinson v. Chemical Nat. Bank, 86 N. Y. 404.
Manifestly, when one person is claiming a debt arising out of contract and another damages arising out of a tort, both are not claiming the same debt, duty or thing. Thus, in Willard’s Equity Jurisprudence, 318, it is said: “Suppose the vendee of goods should be sued by the vendor for the price and by a third person claiming a right paramount to that of the vendor. Here it is obvious that a bill of interpleader will not lie, because one of the claimants merely seeks to enforce a contract and the other claims as for an unlawful conversion. (Slaney v. Sidway, 14 Mees. & Welsh. 800.) * * * On the same principle, where a party having purchased a rick of hay from an executor de son tort was threatened with a suit from the rightful administrator of the same estate and payment demanded, he was held not to be entitled to maintain a bill of interpleader or to have relief under the Interpleader act. As actual purchaser lie was liable on his express contract unless he could defend the action. To the rightful administrator he was liable only in tort for the conversion. Though the property claimed was the same, the duty or obligation was different.—James v. Pritchard, 7 Mees. & Welsh. 216; Glyne v. Duesbury, 11 Sim. 139.”
Moreover, the authorities seem to be uniform upon the proposition that a bill of interpleader cannot be sustained where the complainant is obliged to admit, or where it ap- „ pears, that as to either of the defendants he is a tort feasor. 11 Ency. of Pl. & Pr. 457; Willard’s Eq. Jur. 320; Beach on Modern Eq. Pr. sec. 143; 2 Daniell's Ch. Pr. (5th ed.) 1566; Maclennan on Interpleader, 60; Conley v. Insurance Co. 67 Ala. 472; Mount Holly, etc. Co. v. Ferree, 17 N. J. Eq. 117.
As hereinbefore stated, appellants are not making any claim against appellee. They have instituted suits against, the drawee banks upon the checks, and seek to recover from them in actions ex contractu on the theory that the endorsements of their firm name upon the checks were forged or unauthorized. We are of the opinion that where a person has a cause of action against one upon a contract and against another for a tort, and the satisfaction of a judgment against either upon the cause of action against him would be a bar to the enforcement of the cause of action against the other, a court of equity is without power to compel such person to relinquish his claim and abandon his suit against the one liable upon the contract and require him to proceed against the one liable for the tort. This, in effect, is what appellee is attempting to accomplish in this suit. It is asking that appellants may be enjoined from prosecuting their suits against the drawee banks upon contracts and be compelled to litigate their right to recover against appellee for a tort.
In our judgment a bill of interpleader, for the reasons stated, cannot be maintained against appellants under the facts disclosed by the bill, and the demurrer should therefore have been sustained.
It is unnecessary to discuss the other errors assigned. The decree of the superior court and the judgment of the Appellate Court will be reversed and the cause will be remanded to the superior court, with directions to sustain appellants’ demurrer to the bill of interpleader.
Reversed and remanded, with directions.