In 4 Pomeroy’s Equity Jurisprudence (3rd Ed.), sec. 1322, the learned author thus states the essential elements required to invoke the equitable jurisdiction of the court by a bill of interpleader or a complaint as a substitute for the bill: “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 a common source. 3. The person asking the relief — the plaintiff — must not have nor claim any interest in the subject-*206matter. 4. He must have incurred no independent liability to either of the claimants, that is, be must stand perfectly indifferent between them, in the position merely of a stake-holdor.” And in speaking further in sec. 1328 of the averments of the bill, the same author says: “The bill need not show an apparent title in either of the defendants. On the contrary, if the bill should show that plaintiff was fully informed of the defendant’s rights and of his own liability, or if it should show that one of the defendants was certainly entitled, on the facts alleged, to the thing, debt or duty, in either case it would be demurrable; there would be no ground for an interpleader.” Citing, among other cases, in the note the case of Barker v. Swain, 57 N. C., 220. Such is the defect in the present complaint, a defect of over-, statement of the plaintiff’s case, but neither of the defendants demurred to it; they both answered and set up their conflicting claims to the fund, and we think by so doing waived this defect. For such defect the proper pleading would have been a demurrer, and this not having been interposed, it cannot now be taken advantage of, and we must, for the purposes of the action, treat the complaint as a sufficient bill of interpleader, and determine the questions presented accordingly. Printing Co. v. McAden, 131 N. C., 178; Ladd v. Ladd, 121 N. C., 118; Knowles v. R. R., 102 N. C., 59; Halstead v. Mullen, 93 N. C., 252. The complaint having been filed and the contesting claimants regularly brought into court, the first question presented in the due and orderly course of procedure, upon a demurrer filed by either or all of the defendants, was the sufficiency of the complaint as a bill of interpleader. This being determined, the court should have ordered the plaintiff to pay the amount into court and the defendant to interplead. No such order was entered nor does it seem to have been asked for. If, upon demurrer, the complaint had been adjudged insufficient as a bill of interpleader, then the action would have been dismissed and the defendants left to assert their respective rights against the plaintiff in any way they might have been advised. The contesting defendants, however, filed answer stating their respective claims for and upon the fund. The plaintiff was prompt in bringing this action and in filing its complaint; it offered therein *207to pay tbe money into court, and prayed thereupon to be discharged from further liability. If an order directing payment to be made into court had been made and the plaintiff had failed to comply, then it would have been proper to charge it with interest for such default. The plaintiff being an assessment company, and having avowed its readiness to pay the amount of the certificate into court, and nothing appearing in the record to the contrary, we must assume that it continued ready to pay the same into court at any term when it was so ordered. There were five of these terms between the return term and the term at which the judgment was rendered, at any one of which it was competent for the court to make such an order. It is not suggested that the plaintiff invested the assessments collected to pay this certificate, or that it received any interest on this fund. We think, therefore, his Honor ought not, upon the facts presented, to have charged the plaintiff with interest on the amount of the benefit certificate. The case is somewhat analogous to a proper tender of money; this stops interest, the reason being that the person to whom the tender is made is in the wrong in declining to receive it. In this case the conflicting claims for the fund justify the plaintiff, as a mere stakeholder, in appealing to the court to compel the claimants to litigate their claims.
We do not think there was any error, however, in the ruling of his Honor, disallowing an attorney’s fee to the plaintiff, to be paid out of the fund, and ultimately to be taxed against the unsuccessful defendant. We do not think such practice has obtained in this State. In Gay v. Davis, 107 N. C., 269, this Court said: “There is no statutory provision in this State that has been brought to our attention, or within our knowledge, that prescribes or authorizes an allowance of compensation directly to the counsel of commissioners charged with a particular duty by an order of the court, or otherwise, or to counsel of trustees, whatever may be the nature of the trusts wherewith they may be charged. Nor is there any general rule of practice prevailing in courts that permits such allowances to be made. In the absence of statutory provision, the courts, in the exercise of chancery powers, make allowances to commissioners and trustees in appropriate cases, and such allowances are sometimes enlarged *208so as to embrace reasonable compensation to counsel of such commissioners or trustees, in cases where counsel is necessary to a proper discharge of their duties; but in such cases the courts are careful to see that the services were necessary; that the charges are reasonable and are charged against the proper parties.” Mordecai v. Devereux, 74 N. C., 673; R. R. v. Goodwin, 110 N. C., 175; Chemical Co. v. Johnson, 101 N. C., 223; Patterson v. Miller, 72 N. C., 516; Devane v. Royall, 52 N. C., 426; Moore v. Shields, 69 N. C., 50; State ex rel Whitford v. Foy, 65 N. C., 265. In the case last cited this Court said: “It is not disputed that a trustee may, if necessary, and ought to employ counsel to advise him in the execution of his trust, at the expense of the trust fund. This is considered settled here, although in some of the States a contrary doctrine prevails.” The plaintiff, in the present case, cannot be regarded as a trustee. As modified, the judgment is affirmed. The costs of this appeal will be divided equally between the plaintiff and the children of John Selby.
Modified and affirmed.
Justice BeowN did not sit upon the hearing or decision of this case.