The opinion of the court was delivered by
Huston J.
This suit was assumpsit, and the declaration contained four counts, .The first was on an order drawn by Isaac-Coates in favor of Mosbs Coates, and dated 5th month 6th, Í820, for three hundred and fifty-six dollars, and thirty-two cents. The. second was for money had and received. The third on the acceptance of the said order, as an inland bill of exchange; and the fourth was a special count setting forth all the facts. The pleas were non assumpsit and payment, with leave, &c. After the last two counts had been added to the declaration, the defendant pleaded a foreign attachment by Rebecca Jones against Isaac Coates, with notice to Roberts^ as garnishee; scire facias against the garnishee, and judgment thereon, with an averment that Moses Coates took defence in that attachment, &c. &c. The plaintiff replied that the attachment was issued at the instance of Robetts, and the judgment occasioned by the collusion, misrepresentation and neglect of the said Roberts, and denied that he took defence, &c. The defendant rejoined that there was no collusion, misrepresentation or neglect. On this issue the parties went to trial. There was not in the court below, nor here, any objection to the pleadings. In fact the special plea of the attachment and judgment on it was, perhaps, not formal, but it was not necessary, as it seems to be well settled, that whatever strictness was once necessary, and perhaps is in some forms of action against the garnishee, yet when assumpsit is brought against him by the defendant in the attachment, or any claiming under him, the garnishee may plead non assumpsit, and give thé attachment in evidence. 1 Saund. 67, Turbill's case in notes ; and here, in debt on bond, the defendant may plead payment with leave, &c. and give the attachment in evidence. In England, the attachment being by the custom of London, and in an inferior court, great strictness was once required in setting out the custom correctly, and all the proceedings, even to the payment of the money, but here the attachment is given by act of Assembly in the courts of common law, and no special circumstances are necessary to give jurisdiction.
In order to understand the points, here made in this case, it will be necessary to advert to the facts. I have carefully extracted them from the record. Dr. Jesse Coates proved, that on the 30th [107]*107October, 1824, he went with Moses Coates to the defendant; Moses took out the order and shewed it to Roberts, who said he would pay the order and all the rest, when he was satisfied of the death of the widow. (It was understood in the cause by all, that Roberts was to pay to each of the heirs of Moses Coates, deceased, three hundred and fifty-six dollars, and thirty-two cents, on the death of the widow.) Moses then shewed him, and at his request read, a letter, stating the death of the widow, and the precise time at which it took place. Roberts said he was satisfied, and would pay the money. He said he must go legally about it; he must go and see Mr. Duer, (a lawyer); that Duer did all his business. 'He further said, that when Moses presented the order, he told Roberts that IsSkc owed him money and gave him that order in payment of his debt. The witness, after other matters, perhaps not material, proved, on a cross-examination, that he was subpcened, and attended at the trial of the scire facias, •. on the attachment, at the instance of Moses Coates; that Moses sat— by Duer, the counsel, at that trial, and that the witness then proved .. what is stated above. The witness then, at the instance of the plaintiff, proved the handwriting of Isaac Coates, to the order, and that Isaac told him he got money of Moses to go to the western country, and had given this order in payment of it.
Roberts had been examined on interrogatories in the foreign attachment, and the plaintiff’s counsel then read his answers, the material part of which was, that he had three hundred and fifty-six dollars and thirty-two cents, in his hands, to be paid at the death of the widow: that Mos'es had presented the order, and he had agreed to pay it when satisfied of the death of the widow: that Moséá had shewn him a letter which satisfied him, and that this was before the attachment was sqryed on him.
The plaintiff’s‘counsel further produced the record in the attachment to shew the date when it issued, viz. the 3rd of December, 1824.
The defendant’s counsel then read the whole of the record in the attachment suit, in which there was a verdict for the plaintiff on the issue against the garnishee, (the demand of the plaintiff in the attachment, was eight hundred dollars.) The verdict further found that there was in the hands of the garnishee, the sum of three hundred and fifty-six dollars, and thirty-two cents. A motion for a new trial was made and argued, and judgment given for the plaintiff on which a fieri facias issued for the debt, &o.
George Fisler was then called by the defendant, who proved that he was the agent of Rebecca Jones in the attachment, and at the trial of the scire facias, against the garnishee: that Moses Coates attended the trial: that the parties were contending who should get the three hundred and fifty-six dollars, and thirty-two cents, which was due Isaac Coates, on his mother’s death : that Moses produced this order: that in a conversation lately between Moses and the defendant, each said the other had employed Duer, (the counsel), but [108]*108Moses admitted he paid him a fee for that business: that Moses said Roberts and he had carried on that suit in concert, which Roberts denied, and said he never paid any thing. Mr. Duer is dead. Í
The defendant then called Mr. Pyle, the counsel for Rebecca Jones, and proved by him, the payment of the money by Roberts, on the fieri facias, to him as attorney to Mrs. Jones, and the defendant closed.
The plaintiff then called George Fisler again, who stated that in the fall of 1824, Roberts told him that Moses Coates had presented an order purporting to be written by Isaac for this money: that he had told Moses as soon as he had legal evidence of the widow’s death, he would pay the whole and be done with it: that Roberts further told him that one Edwards had attached the money in his hands: that there would be more than would pay Edwards: that as I knew Rebecca Jones, I might tell her, and there would be an opportunity for her to try to get a part of her debt: that the witness told her, and she gave him her bond on Isaac to take to a lawyer: that he was with the sheriff when he served the attachment, and when asked how much money he had, Roberts replied, between three and four hundred dollars. Roberts had told me (the witness,) that if Rebecca Jones took an attachment, she would have an opportunity to get part, as there was more than would pay Edwards. He said he had not accepted the order to Moses. The witness further said he would not have told Rebecca Jones, and no attachment would have issued, if Roberts had not told him: that he gave the same evidence at the former trial: that he and Dr. Coates-were the only witnesses examined at that trial: that he did not remember that Dr. Coates told the jury at the former trial that the order was given by Isaac for a debt to Moses.
Judge Darlington, before whom the issue on the scire facias in the attachment was tried, was then called, who from his notes proved, that Dr. Coates, proved as here, the presentation of the order to Roberts, and what passed : that Mr. Duer then asked Dr. Coates to state how much money Isaac Coates owed to Moses, which was objected to, and the court decided in these words: “We cannot go into the state of accounts between Isaac and Moses Coates, except so far as it is connected with some actual transfer of this particular debt;” and no more was said. Mr. Duer then read the order: that Dr. Coates was asked at whose instance he attended that trial, and he replied at the ipstance of Moses Coates: that the counsel of Rebecca Jones, then called George Fisler, and asked him to relate the conversation he had with Roberts: that this was objected to, but admitted, he being a party to the cause, and his declarations good evidence against him.
The judge then read from his notes the testimony of Fisler, in that former trial, agreeing with what he stated as above.
The judge further proved that it was admitted the money was in the hands of Roberts; and Mr .Duer, the counsel, stated to the jury, that [109]*109the only question was, whether at the time of the attachment laid, the money belonged to Isaac Coates?or Moses Coates. -—
The foregoing was all the evidence given in this cause. The counsel then staled certain propositions, on which he requested the court to charge the jury, for which I refer to those propositions, and the charge of the judge. The errors assigned were in the answers to the propositions, but in fact the. argument here turned principally on other matters.
And first, it is alleged, there was error in the admission of Fisler to prove in the trial on the scire facias, in the attachment, what Roberts had said to him ; and next the whole practice of interpleading is objected to, at least, as practiced in this state.
1 shall notice this first. There certainly was a time in England, when the practice in the courts of law was very different from what it is now in that country, and more different from what it always was, and is here. That practice gave constant employment to the courts of chancery ; and even the courts of chancery have extended their powers, or applied them to subjects, not formerly known. When bills of interpleader were first used, I shall not inquire. Lord Hardwicke speaks of them in 1 Vezey, 249, as a new invention, and not to be encouraged ; they have, however, been applied much more extensively, than in his time, and now parties are compelled to interplead by the courts of law, without the trouble, delay and expense of a bill in chancery.
We are told (see Maddock’s Ch. 173,) a bill of interpleader lies where a person claiming no right in the subject, and not knowing to whom to render a debt or duty, apprehends injury from claims made by two or more claiming in different rights the same debt or duty. A mere claim is now the subject of such bill, and that the one claims in a legal and the other an equitable right. It is granted on an affidavit that the bill is not exhibited by fraud or collusion, but for his own security, but it need not state that it is done at his own expense, nor that it is filed without the knowledge of either party. The bill must shew that there are two persons in existence, each of whom claims the property ; if one of them does not appear or will not support his claim, the debt is given to the one who does appear, and a perpetual injunction is granted as to the other. I shall not go into the inquiry as to all the cases to which it applies; it is the appropriate remedy for a mere stakeholder. Sometimes a trial at law is directed, and after the plaintiff in the bill has no more concern in the matter, his death does not stay the proceedings, and the cause will be decided between the claimants, without a bill of revivor, 1 Vernon, 351.
We have no court of chancery, but as it often happens, that more than one person claims an interest in, or right to the same goods or money, and as it would be a disgrace to the administration of justice, that the law should levy a sum of money from a defendant for one person, and the same law should, without any fault of the defendant, compel him to pay the same debt to another, the practice of permit[110]*110ting a party to interplead, has long been well known, and in some cases, the courts compelled a person to interplead, or more properly, to appear and take defence in a suit, or to be forever barred. And by an act of Assembly, 16 April, 1827, for distributing money raised by sales on execution, the court are required to give notice to all who may claim; and if any person neglects to appear and take defence against any claimant, such person is forever barred ; and by the decision of this court, it is not necessary nor proper that each claimant should bring an action ; if one sues, and an issue is directed, every claimant must interplead, or be forever barred. 2 Rawle, 37. This act of Assembly is only a recognition of what was always the law and the practice, with the addition of prescribing what shall be notice to all concerned, and of giving an appeal to the Supreme Court. So under the 14th section of the act, 20th March, 1810, giving jurisdiction to justices of the peace, it is provided that a judgment may be entered before a justice, by confession, &c., for a sum exceeding one hundred dollars; if, however, any creditors of the defendant shall make oath before the justice, that there is just cause to believe such judgment was confessed with a view to defraud creditors, it is made the duty of the justice to transmit a transcript of his judgment to the prothonotary of the Common Pleas, whose adjudication thereon shall be final. Under this act the practice has been in some counties to order a feigned issue; in others the court on proper affidavits opens the judgment, and permits the creditor or creditors to plead, and the plea is entered as being made by some creditors ; the verdict and judgment in either form, in the words of the act, are final.
The case of Heller, and Jones, 4 Binn. 61, is the earliest recognition I have found in our books of interpleading, and the effect of it. The proceeding began by a judgment confessed in 1787. On a scire facias to revive this judgment, Miller, who claimed under a younger judgment, on which he had sold the land, was permitted to enter a plea, and he gave notice of special matter. This was before Rush, then President of that district, and who had been a justice of the Supreme Court, under the former constitution. The cause was removed to the Supreme Court, and tried at nisi prius in 1795. No objection was made to his right to interplead, though eminent counsel were concerned ; but for some cause, he did not appear at the trial; no witnesses were examined, and a verdict and judgment were rendered for the plaintiff, who levied on and sold the land, and brought ejectment against Heller, who had bought from Miller. Heller offered to prove the same matter which Miller had alleged in his plea to the scire facias, and it was held he could not: That Miller, under whom he claimed, having been admitted to interplead, and put in a plea, &c., was barred, although he afterwards neglected the defence, and Heller claiming under him, was also barred. In the argument, the right of Miller to appear and interplead, was denied, and also the effect of it, if he had been heard, and Judge Breckinridge was with them, but the Chief Justice and [111]*111Judge Yeates, whose practice began in 1762, and had been perhaps more extensive than that of any other man, then or since in this state, had no doubt as to this point, and I have never heard the right of a party interested to interplead, denied since. The acts of assembly, above referred to, are predicated on the existence of such practice ; they did not introduce it.
The only difference between the practice here, and in England, is, that there, when one claimant sues, and interpleading is ordered, the name of the other claimant is substituted as defendant, and the name of the bailee or stakeholder, is struck out; here, so far as I have known the practice, one claimant sues him who has the money or property, and the other claimant is permitted or compelled to defend the suit, and shew his right. If after appearing and pleading, the defence is neglected or abandoned, the party is forever barred. Much more will this be the case, if a parly defends the cause and loses it.
Let us now come to the only remaining point in the cause, viz: was the recovery in the foreign attachment, a bar to the recovery of the present plaintiff? 1 do not understand this to be denied, if the proceedings have been fair. Some questions have been made as to the necessity of the garnishee giving notice of the attachment to the defendant, and there is one case, 3 Wilson, 297, Fisher and Lane, in which it was held necessary, and that for want of it, the defendant, whose money or goods have been attached or taken from the garnishee, may recover again from him. The prior and subsequent cases do not say so, and it is not necessary to give an opinion on the subject, because our acts of assembly do not requireif.; because they require the attaching creditor to give back, to restore it, if his debt is disproved, and because, in this case, the person who claims the money, had notice, and took defence, as appears from the evidence, and from the finding of the jury.
Where the attachment has been served, but proceedings on it are still pending, and the defendant sues the garnishee, the attachment pending must be pleaded in abatement, and is good. 5 Johns. 101, Embree and Collins v. Hanna. “Nothing,” says Kent, C. J. in delivering the opinion of the court, “ can be more clearly just, than that a person who has been compelled by a competent jurisdiction to pay a debt once, should not be compelled to pay it over again ;” and after reviewing the cases, he comes to the conclusion that it would be a good defence, and says, “if then, the defendant would have been protected under a recovery, by virtue of the attachment, the same principle will support a plea in abatement of an attachment, pending and commenced prior to the present suit.”
In our own state, a foreign attachment commenced and proceeded in, for some time, and then'discontinued, was declared to be evidence, to stop interest, during the time it was pending.
It would be a waste of time to use arguments, or to cite cases to prove that the decision of a court of competent jurisdiction, upon the same point, is conclusive, where the same point comes again in ques[112]*112tion, between the same parties, or privies; and the decision of a court on a special point, on which a court has eaL&nsive jurisdiction, or in which the proceedings are in rem, is conclusive on all the world, Thus, the discharge of an insolvent, under the clause called the bread act, is conclusive on all the world, when coming incidentally before another court. McKinney v. Crawford, 8 Serg. & Rawle, 354. Whoever has an interest, and has notice, and takes part in a trial, is bound, though not named in the record; thus a recovery in ejectment against a covenantee, is not evidence of the defect of the defendant’s title against the covenantor, unless he had notice; but if he had notice, and especially if he defended the suit, it is conclusive. Leather v. Poultney, 4 Binn. 356. Bender v. Fromberger, 4 Dall. 436, in note. So the record of an action of trespass between B. and the cestui que trust of A., is evidence in a subsequent ejectment between B. and A., Calhoun’s lessee v. Dunning, 4 Dall. 120.
But it is said, the court did not answer the 4th point separately from the 5th and 6th, and there is error in this. And we are reminded by the counsel, that these points were drawn up with great care. I have long known that these propositions to be submitted to the court, are often drawn with as much care as candour. I do not allude to this case more than many others. I gave my opinion when in the Common Pleas, in Stewart v. Shoenfelt, which was sanctioned by the then Supreme Court, 13 Serg. & Rawle, 356. The same opinion is to be found in many cases. The 4th, 5th, and 6th points all relate to the same matter, and whoever reads them, and the charge, must see that they are all freely and fairly answered. If it is alleged that every proposition must be answered in the very words put by the counsel, I utterly deny it; counsel will select a part of the facts, and ask what is the law on those facts; now the jury are to find on all the facts, and not on any separate number of them, and often are to decide the cause on the facts, and the circumstances under which they occurred, and the intentions, which attended those who did the actions or spoke the words, and it is the duty of a judge to state all this to a jury, and if he does not, he does not do his duty.
The conduct of Robert Roberts, may have been perfectly fair, and all his declarations precisely true, and yet that conduct, and those declarations may have occasioned a verdict and judgment against Moses Coates, and yet Roberts not be liable. If his conduct was deceptive, and his statements untrue, and especially if this happened by collusion with Jones, I admit it may prevent the former trial on the scire facias, in the attachment, from being conclusive, and so the judge told the jury, and such was the issue ti-ying, and they have found no collusion, misrepresentation, or neglect. This was the issue, and the only material issue which could be formed in the cause. Moses Coates had all the right of Isaac Coates, or he had no right; that he had notice, was not denied at the trial or here; the only dispute was, whether he defended in the scire facias, alone, or in concert with Roberts; and it is perfectly immaterial which, for in either [113]*113case, that trial, verdict and judgment, were conclusive on the matter now trying, unless there were collusion and fraud in Roberts. If the jury in this case found there was collusion, misrepresentation or fraud, the former verdict and judgment were not conclusive, and they must a second time have tried whether Roberts accepted the order .of Isaac to Moses, and whether that order was to pay Moses a debt, or .to take the money out of the reach of Isaac’s creditors. If the present jury believed there was no fraud, the cause was at an end; the other matters had been before decided, and could not be inquired into.
I need not more than mention the objection, that evidence alleged to be illegal, was given on the trial of the scire facias; the elder counsel passed it over properly; we cannot inquire into it here. The lawyer employed and feed by Moses, ought to have taken a bill of exceptions, and could have taken a writ of error; if Roberts had objected, it would have been considered. Roberts was not bound to take a writ of error; a stakeholder, and he was literally so, and never claimed any right, is not bound to take a writ of error ; if another defends in his name, and will agree to be answerable for costs, he is bound to permit his name to be used for a writ of error; this was not asked of him.
Judgment affirmed.