By the Court,
Smith, J.
The first error complained of in this case, is the refusal of the judge below, to nonsuit the plaintiff But this could not be done under the state of the pleading then existing. The defendants had pleaded puis darrien continuance, which was a waiver of all other pleas, and admitted the cause of action as set out in the plaintiffs’ declaration. Alder vs. Wise, 4 Wis., 159; Culver vs. Barney, 14 Wend., 161; Chitty Pl., 697, 698.
It is also alleged that the court erred in sustaining the demurrer to the defendant’s plea. But as the pleadings are [318]*318not set out in the printed, case, we do not feel called upon to examine the point.
The other and principal points on which the plaintiffs in error rely to reverse the judgment of the court below, arise out of the instructions given to the jury, or witheld from them against the request of the plaintiffs in error, to which exceptions were taken on the trial.
This case brings under review the several provisions of our attachment law in relation to garnishees, a law difficult to be so framed, and still more difficult to be so administered as to do exact justice to all the parties affected by its operation. The law provides for the attachment of property and credits of the defendant in the hands of a third person, and for the summoning of such person as garnishee, and for his examination on oath touching the property, credits, or effects, in his hands belonging to the defendant. If his answers are satisfactory to the plaintiff, the judgment of the court may be taken thereon; but if not, an issue may be made up, and tried by a jury as in other cases. In this case such an issue was made up, on which the jury rendered a verdict in favor of the plaintiffs in the attachment; on which judgment was rendered. It is contended that this judgment is an absolute bar to the right of the plaintiff below to recover.
It should be observed that the parties in the attachment suit were Arkenburgh & Co., plaintiffs, against Francis & Co., defendants, and the present plaintiffs in error as garnishees of Francis & Co. The defendant in error was in no sense a party to the suit, but was a stranger thereto. He did not appear therein, nor was any process served upon him by which the court obtained jurisdiction of his person. He had no day in court.
It is insisted that the payment of the judgment by the Adamses was compulsory; that the debt or property was taken from them by process of law, and that they should therefore be protected.
[319]*319It would seem to be unjust that a debtor can be compelled to pay his debt to the creditor of his creditor by the judgment of a court of competent jurisdiction, and still remain liable to the latter, or be compelled to pay it twice. And it also seems unjust that a creditor shall be compelled to lose his debt by any proceedings by or among strangers, to which he has not been made a party, or had any opportunity to be heard.
Ordinarily the creditor of the garnishee is the defendant in the attachment, and has not only the opportunity to contest the original cause of action, but also the liability of the garnishee. In such cases it is tolerably well settled that when the garnishee acts in good faith the party would be bound by the judgment. A sues B by attachment, and attaches property in the hands of C, which is alleged to be the property of B. On the trial the property is found to belong to B, the defendant in the attachment. As between A, B and C, this judgment is conclusive. But does this proceeding settle the title to the property against all the world ? Is D, whp may claim the property, bound by this proceeding whether C, the garnishee chose or not to disclose his title on the trial ? Suppose the property in the hands of C was a horse, placed there by B for keeping, and attached by A, as the property of B, and it should be so adjuged; would that judgment bind D, the real owner ? Suppose the tobacco which was the subject matter in controversy, had been replevied from the Adamses by Francis & Co., this would be a compulsory process of law equal in dignity, at least, to a garnishee process; but would the judgment in such case conclude Filer, the vendor of Adams, unless Filer had had the proper opportunity to defend his title in that suit? Most of the cases cited by the plaintiffs in error are such as involve the right of the respective parties in the attachment suit, viz: the plaintiff, the defendant, and the garnishee; and as to such parties we see no reason why the judgment against the garnishee, provided he has acted in good [320]*320faith, should not be binding upon the defendant in attachment, he being a party to the suit. At all events such seems to be the prevailing doctrine, even in proceedings by foreign attachment, in which the defendant has not been served with process. It was not, however, so settled without a struggle. But the proceeding was inter partes to the record, and at all events binding upon all the property of the defendant found within the jurisdiction.
The reason urged by the counsel for the plaintiffs in error, why the judgment should be a protection to them, because the payment thereof by them was compulsory, or what is more in point, the property or its value was taken from them by process of law, is riot without force. But let us examine its true weight, and see whether the same reason will not apply to many other inevitable evils, owing to the inherent defects in the administration of justice, i
Suppose Arkenburgh & Co., had claimed the tobacco in their own right, an£ had sued the Adamses in trover for its value and had recovered: would that recovery be a bar to an action by Francis & Co., claiming the title ? Would it have concluded Filer ? If it would not conclude Filer, then it would interpose no legal impediment to his recovery, and the same administrative anomaly would be presented as in the case before us. Juries do not always find the same verdict upon the same state of facts, and unfortunately courts do not always agree in their application of the law. Until absolute perfection can in all cases be attained, injustice will sometimes be done. Even courts of equity with all their flexibility, are not always equal to the demands of absolute justice. Certain principles of jurisprudence and rules of administration, must be observed, to depart from which on the supposed exigencies of a particular case, would be a greater evil than the temporary injury of an individual which the law could not redress or prevent without an infraction of those principles.
[321]*321One of the fundamental principles of jurisprudence in all civilized countries, is that every person is entitled to his day in court: that his rights of person, reputation, or property shall not be concluded, unless he has been brought into court in some manner, and made a party to the proceedings involving such rights. It can scarcely be necessary to quote authorities to sustain this principle, for it lies at the very foundation of the common law system of jurisprudence. Sir William Blackstone, in his commentaries, book 3, p. 316, says, “ the court can determine nothing unless in the presence of both parties in person, or by their attorneys, or upon default of one of them, after his orignal appearance, and a time fixed for his appearance in court again.”
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By the Court,
Smith, J.
The first error complained of in this case, is the refusal of the judge below, to nonsuit the plaintiff But this could not be done under the state of the pleading then existing. The defendants had pleaded puis darrien continuance, which was a waiver of all other pleas, and admitted the cause of action as set out in the plaintiffs’ declaration. Alder vs. Wise, 4 Wis., 159; Culver vs. Barney, 14 Wend., 161; Chitty Pl., 697, 698.
It is also alleged that the court erred in sustaining the demurrer to the defendant’s plea. But as the pleadings are [318]*318not set out in the printed, case, we do not feel called upon to examine the point.
The other and principal points on which the plaintiffs in error rely to reverse the judgment of the court below, arise out of the instructions given to the jury, or witheld from them against the request of the plaintiffs in error, to which exceptions were taken on the trial.
This case brings under review the several provisions of our attachment law in relation to garnishees, a law difficult to be so framed, and still more difficult to be so administered as to do exact justice to all the parties affected by its operation. The law provides for the attachment of property and credits of the defendant in the hands of a third person, and for the summoning of such person as garnishee, and for his examination on oath touching the property, credits, or effects, in his hands belonging to the defendant. If his answers are satisfactory to the plaintiff, the judgment of the court may be taken thereon; but if not, an issue may be made up, and tried by a jury as in other cases. In this case such an issue was made up, on which the jury rendered a verdict in favor of the plaintiffs in the attachment; on which judgment was rendered. It is contended that this judgment is an absolute bar to the right of the plaintiff below to recover.
It should be observed that the parties in the attachment suit were Arkenburgh & Co., plaintiffs, against Francis & Co., defendants, and the present plaintiffs in error as garnishees of Francis & Co. The defendant in error was in no sense a party to the suit, but was a stranger thereto. He did not appear therein, nor was any process served upon him by which the court obtained jurisdiction of his person. He had no day in court.
It is insisted that the payment of the judgment by the Adamses was compulsory; that the debt or property was taken from them by process of law, and that they should therefore be protected.
[319]*319It would seem to be unjust that a debtor can be compelled to pay his debt to the creditor of his creditor by the judgment of a court of competent jurisdiction, and still remain liable to the latter, or be compelled to pay it twice. And it also seems unjust that a creditor shall be compelled to lose his debt by any proceedings by or among strangers, to which he has not been made a party, or had any opportunity to be heard.
Ordinarily the creditor of the garnishee is the defendant in the attachment, and has not only the opportunity to contest the original cause of action, but also the liability of the garnishee. In such cases it is tolerably well settled that when the garnishee acts in good faith the party would be bound by the judgment. A sues B by attachment, and attaches property in the hands of C, which is alleged to be the property of B. On the trial the property is found to belong to B, the defendant in the attachment. As between A, B and C, this judgment is conclusive. But does this proceeding settle the title to the property against all the world ? Is D, whp may claim the property, bound by this proceeding whether C, the garnishee chose or not to disclose his title on the trial ? Suppose the property in the hands of C was a horse, placed there by B for keeping, and attached by A, as the property of B, and it should be so adjuged; would that judgment bind D, the real owner ? Suppose the tobacco which was the subject matter in controversy, had been replevied from the Adamses by Francis & Co., this would be a compulsory process of law equal in dignity, at least, to a garnishee process; but would the judgment in such case conclude Filer, the vendor of Adams, unless Filer had had the proper opportunity to defend his title in that suit? Most of the cases cited by the plaintiffs in error are such as involve the right of the respective parties in the attachment suit, viz: the plaintiff, the defendant, and the garnishee; and as to such parties we see no reason why the judgment against the garnishee, provided he has acted in good [320]*320faith, should not be binding upon the defendant in attachment, he being a party to the suit. At all events such seems to be the prevailing doctrine, even in proceedings by foreign attachment, in which the defendant has not been served with process. It was not, however, so settled without a struggle. But the proceeding was inter partes to the record, and at all events binding upon all the property of the defendant found within the jurisdiction.
The reason urged by the counsel for the plaintiffs in error, why the judgment should be a protection to them, because the payment thereof by them was compulsory, or what is more in point, the property or its value was taken from them by process of law, is riot without force. But let us examine its true weight, and see whether the same reason will not apply to many other inevitable evils, owing to the inherent defects in the administration of justice, i
Suppose Arkenburgh & Co., had claimed the tobacco in their own right, an£ had sued the Adamses in trover for its value and had recovered: would that recovery be a bar to an action by Francis & Co., claiming the title ? Would it have concluded Filer ? If it would not conclude Filer, then it would interpose no legal impediment to his recovery, and the same administrative anomaly would be presented as in the case before us. Juries do not always find the same verdict upon the same state of facts, and unfortunately courts do not always agree in their application of the law. Until absolute perfection can in all cases be attained, injustice will sometimes be done. Even courts of equity with all their flexibility, are not always equal to the demands of absolute justice. Certain principles of jurisprudence and rules of administration, must be observed, to depart from which on the supposed exigencies of a particular case, would be a greater evil than the temporary injury of an individual which the law could not redress or prevent without an infraction of those principles.
[321]*321One of the fundamental principles of jurisprudence in all civilized countries, is that every person is entitled to his day in court: that his rights of person, reputation, or property shall not be concluded, unless he has been brought into court in some manner, and made a party to the proceedings involving such rights. It can scarcely be necessary to quote authorities to sustain this principle, for it lies at the very foundation of the common law system of jurisprudence. Sir William Blackstone, in his commentaries, book 3, p. 316, says, “ the court can determine nothing unless in the presence of both parties in person, or by their attorneys, or upon default of one of them, after his orignal appearance, and a time fixed for his appearance in court again.”
I could go on and cite from all writers upon elementary law this requisition as a fundamental, primary, indispensable condition in all j udicial proceedings, whereby a party should be bound, that he should have had his day in the court which may have condemned him; in other words, that he should in some manner, recognized by the forms of law, become a party or privy to the proceedings, by the record of which he is sought to be charged or concluded.
It is no answer to a claim of property set up against me, by A, that in a trial between me and B,the title was adjudged to be in me; or that in the same proceeding the title was adjudged to be in B, and that I had been compelled to deliver it over, or respond for its value. I have no reference here of course, to the effect of a judgment upon privies in estate or otherwise; for the rule in such cases, it is conceded, has no application to the case under consideration. I have a right to try my title, or have my rights adjucated by a competent tribunal of my own selection, or by a competent tribunal before which I am lawfully called to defend or protect my rights.
In some states, and in some cases, by statute a mode of service is provided, whereby a person is sought to be brought [322]*322•within the jurisdiction of the court, other and different from personal service. Sometimes this is effected by seizing the property of the defendant within the jurisdiction, and thus compelling an appearance; in other cases notice by publica tion of the pendency of the suit is made, for certain purposes, equivalent to the personal service of the process of the court. But in all these cases the principle is recognized that the party whose rights are concluded by the judgment of a judicial tribunal, must have his day in court: that is, he must have an opportunity to be heard, and be made subject to the jurisdiction of the tribunal by service of its process or its equivalent.
There is a class of cases where the officer of the law is protected against all parties, in the proper execution of the specific process of the court; as when an officer executes a writ of replevin by seizing the particular property named in the writ according to the command thereof; or in the execution of a search warrant; or a warrant for the arrest of a person named, &c., &c. But this protection extends to the officer only, and by no means applies to the parties who call into operation the agencies and instrumentalities ot the law.
The pleadings here reduce our inquiry to a very narrow ■compass. The Adamses do not defend by a direct impeachment of the title of Filer, their vendor, but they waive every defence of that kind, which may be ordinarily available between vendor and vendee, and claim that the record of the judgment and its satisfaction preclude any further demand or inquiry as to them. The title of Filer is not put in issue by the defendants’ plea, every plea or defence being waived except that set up by the plea puis darrien continuance.
It appears that the attachment suit against Francis & Co., was continued at one or more terms to procure evidence, and that this suit of Filer against the Adamses was also continued at the same terms. Messrs. Emmons & Yan Dyke prosecuted [323]*323the Adamses in the garnishee suit, and defended them in the suit of Filer against them. Mr, Yan Dyke applied to the Adamses to join in a commission to take testimony in New York, and they did so. He also applied to Mr. Salomon, of the firm of Smith & Salomon, who were the attorneys of Filer in this suit, to join in the commission, who declined. Except this offer by Mr. Yan Dyke, the attorneys of Filer, Smith & Salomon, had no proposition or application made to them to defend the garnishee proceedings. The Adamses, nor any one in their behalf, offered or requested Filer to defend. They gave no notice to Filer or to Smith & Salomon, or to any one in behalf of Filer, of the pendency of these garnishee proceedings.
We are therefore clearly of the opinion, that the record of the proceedings in the garnishee suit did not conclude Filer’s rights, unless the Adamses discharged their duty in the premises. And we are also of the opinion that to protect themselves, the garnishees should have not merely notified Filer of the pendency of the proceedings, but that they should have also tendered to him the conduct of the defence; or in other words, requested him to defend. The essence of the garnishee’s equity consists in the fact that he has done his full duty, and has been compelled to pay; for if he pay when he is not legally bound to do so, he cannot avail himself of such payment. Flower vs. Parker, 3 Mason, 247; 8 Blackf., 418; 1 Binn., 25; 4 Watts, 390; Drake on attachments, § 732, et seq. In Prescott vs. Mull, 17 J. R., 284, it was held that when the garnishee knew of an assignment of the debt in his hands, and made no mention of it in his answer, the judgment against him will be no protection to him against an action by the assignee. 3 Porter, 175, 229; 9 Robinson, (La.) 453; Swartwout vs. Payne, 19 J. R., 294, and authorities there cited.
All these cases, and very many others which might be [324]*324cited, show that the garnishee has a duty to perform, even in reference to the defendant in the attachment suit, in order to shield himself by the record of the judgment therein. We have already seen, from the authorities before cited, how strictly he is held to the performance of all his duties where the rights of an assignee of the debt may by possibility intervene. How much more sternly would the law require of a vendee, a faithful vindication of the title of his vendor when thus assailed; or in the want of such vindication, a full relinquishment and tender of the conduct of the suit wherein the title of the property was brought in issue.
In this case, the Messrs. Adams do not appear to have taken the first step to apprise their vendor, Filer, that the title which they had acquired by purchase from him had been called in question. They have given him no notice of the garnishee process served upon them. They have not invited or requested him to defend his title. Furthermore, after the tobacco had been attached in their hands as garnishees, alleged to be the property of Francis & Co., instead of giving Filer notice that his title to the tobacco was questioned by the garnishee process, and that therefore his sale to them might be unwarranted, they seem to have gone on and appropriated the tobacco to their own use, the possession of which they had obtained from Filer by virtue of their purchase! from him. They do not seem to have repudiated the sale of the tobacco by Filer to them; when, as alleged by them, the title to the tobacco was found to be in Francis & Co. We do not find that they offered to deliver the same to the plaintiffs in the attachment, or that they gave Filer any opportunity to contest his title, but that they availed themselves of the possession which they obtained by means of their purchase of Filer, and through that means, used the property in specie, risking their liability to the real owner for its real or agreed value, as the case might be.
[325]*325Undoubtedly it was competent for the Adamses to contest the title to the tobacco in this suit of Filer against them. They might have defended, if they had thought proper, against this contract of sale on the ground that the vendor had no title in the property, and that the consideration had failed. All defences of this kind were open to them, by which they might have required Filer to make good his title to the property. The merits of the case were proper to be discussed and determined, as was intimated in Enos vs. Tuttle, 3 Conn. Rep., 27. But all such defences were waived by their plea, and by that they must now abide.
We have carefully examined all of the cases cited by the plaintiff in error, from which they deduce the doctrine, that the garnishee is protected upon the sole ground that he is compelled by the court to deliver the property or pay its value. But we do not so understand them. It is said by the counsel for the plaintiffs in error, that “ none of the cases which hold that a garnishee, against whom there has been a recovery, shall be protected in a subsequent suit, proceed upon the notion, that the plaintiff in the second suit was a party to the former, but upon the broader ground that the payment by the garnishee was compulsory, and that the debt or property was taken from him by process of law.” I do not propose to review these cases in detail, but on such review it will be found that in no case cited has it been distinctly held that a stranger to the suit has been concluded by any process to which the garnishee has been a party. On the contrary, in Enos vs. Tuttle, in 3 Conn., 27, it is distinctly asserted that the right of the stranger remains unaffected by the garnishee proceeding, and the merits of his claim to be tried like all other claims. In none of these cases is it intimated that the garnishee is placed in a position like that of an officer executing a writ of replevin, where he is commanded by his writ to replevy the specific property named therein. Even [326]*326in this case the protection of the officer as against a stranger, has been most seriously contested. But the garnishee can contest the title, the officer cannot; the garnishee may call in his creditor or vendor to defend, the officer cannot It is vain to say that the real owner of property recovered in the hands of the garnishee may have his remedy over against the plaintiff, in the attachment. It is not within the power of the court thus to transfer liabilities upon, and to transpose parties to contracts, and thus impair or destroy their obligation. The attaching creditor may be, as in this case, without the jurisdiction. It would be the height of injustice to permit the garnishee to sit quietly and allow property in his hands to be taken to satisfy the debt of a stranger to his vendor, or to convert the property to his own use, and answer for its tried value, between him and the plaintiff in attachment, without giving his vendor notice of the dispute of his title, and the privilege of defending it; or to conclude him as to its value. It must be recollected that Filer was a stranger to the suit between Arkenburgh & Co., and Francis & Co., and the Adamses; that the Adamses might have required Filer to protect their title as vendees, but they did not; that they kept and used the property, accounting to the plaintiff in attachment, for the assessed value in that suit, and thus seek to be absolved from their contract of purchase with Filer. It was competent for them, as before remarked, to dispute his title by proper pleadings, but they did not. They might have discharged their duty to Filer by tendering the defence of his title to him in the garnishee suit, but they did not. We have been unable to find any authority which will excuse them from the fulfillment of their contract of purchase.
It is unnecessary to pursue this discussion further. We think the instructions of the court to the jury were correct. The garnishee, in order to protect himself, must discharge his duty. The Adamses should have given Filer notice of the [327]*327proceedings against them, and tendered him the defence, at the earliest practicable moment. So far from doing this, it does not appear that they defended at all. The same counsel who were prosecuting them as garnishees, were defending themas the vendees of Filer. But of course they could not at the same time act for the plaintiffs in the attachment and for the garnishees. The latter, so far as it appears, neither defended themselves as the representatives of Filer’s interest, nor requested him to do so. It would he monstrous injustice to allow the rights of a person to he concluded in such a manner. It would have been no hardship upon the plaintiffs in error to be required to notify the defendant in error of their garnishment, and requested him to take upon himself the de-fence of his title. Any rule short of this would place it in the power of a fraudulent garnishee to make a record which would bar his creditor, or even a stranger, without having an opportunity to be heard.
It is claimed by the counsel for the plaintiffs in error, that Filer had notice of the garnishee proceedings, in two ways, 1. By Mr. Van Dyke requesting Mr. Solomon to join in the commission, and 2. By a notice of the same attached to the general issue originally filed in this suit Of the former we have already spoken. Mr. Van Dyke was not in that matter the agent or attorney of the Adamses. Even if he were so, a request to join in a commission is not an offer of the defence in the suit, and if it were such, it was not seasonable.
In regard to the notice appended to the general issue, it is only necessary to remark that such notices are only held good for the particular purpose for which the statute allows them to be filed. They are not binding as admissions upon the party filing them, and can have no other effect upon the opposite party than to allow the matters of which they give notice to be given in evidence. In this case the notice would have permitted the defendants below, to have given in evi-[328]*328denee the facts therein mentioned in impeachment of Filer’s title, had they not by their plea puis darrien continuance, waived all former pleas, and among them the general issue, and the matters set out in the notice thereto subjoined. But such a notice could extend no further. It would be notice of nothing in another suit. It is not even regarded technically as a part of the record in the same suit.
The instructions of the court as to the measure of damages were correct, viz: the amount of the notes.
On the whole case we are unable to discover any error in the proceedings in the court below, and the judgment must 'therefore be affirmed.
Judgment affirmed with costs.