Page:Federal Reporter, 1st Series, Volume 10.djvu/277

 HARKIS V. HESS. 265 �commenced a suit against the defendants in a court of tins state to recover the said $1,490.18, with interest from November 30, 1881. The defendants are willing to pay into court $1,490.18, with interest from November 29, 1881. Both the plaintiffs and the Hanover Bank oppose the application. �The defendants have the money which they received from the Han- over Bank. It is claimed by each of the two parties, It is claimed directly by the Hanover Bank as the money which it paid to the defendants; and, although the suit in this court is brought on the check, yet it is really a suit to recover the money which the Hanover Bank paid to the defendants as being the money of the plaintiffs. The plaintiffs can be in no better position, as regards the real trans- action, than if no check had been given. The check was given under a mistake of fact. The rights of the plaintiffs as against the money and the defendants, and as against the claim of the Hanover Bank to the money, are no different now from what they would be in a suit by the Hanover Bank against the plaintiffs to recover back from them money paid by the plaintiffs to them directly as the purchase priee of the note. Whether the plaintiffs or the Hanover Bank have the bet- ter right to the money is a question not to be settled on this applica- tion. The defendants are not questioning the title of the plaintiffs to the note; and, as to the money, the defendants are mere stake- holders. �The case is clearly one within the state statute. The application has relation back to the time when notice of making it was served, and the bringing of the suit in the state court subsequently by the Hanover Bank cannot affect the jurisdiction of this court to grant the application. It is granted, and the order to be made will be made nunc pro tune, as of the day for which the application was first noticed. The amount to be deposited in court will be |1,490.18, with interest from November 29, 1881. ��� �