Roberts denied, and said he never paid anything. Mr. Duer
is dead.
The defendant then called Mr. Pyle, the counsel for Rebecca
Jones, and proved by him, the payment of the money by Rob-
erts, on the fieri facias, to him as an 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 evi-
dence 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 he asked how
much money he had, Roberts replied, between three and four
hundred dollars. Roberts had told me (the witness,) that if Re-
becca 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 fur-
ther said he would not have told Rebecca Jones, and no attach-
ment 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
118
Feb. 4, 1833.] OF PENNSYLVANIA. 108
[Coates v. Roberts.]
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 instance 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 declara-
tions 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 *the only question was, whether at the
time of the attachment laid, the money belonged to Isaac
[*109]
Coates, or Moses Coates.
The foregoing was all the evidence given in this cause. The
counsel then stated certain propositions, on which he requested
the court to charge the jury, for which I refer to those proposi-
tions, 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
interpleuding is objected to, at least, as practiced in this state.
I shall notice this first. There certainly was a time in Eng
land, 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 sub-
jects, 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 of
chancery.
We are told (See Haddock's Ch. 173), a bill of interpleader
lies where a person claiming no right in the subject, and not
knowing to whom to renderadebt or duty, apprehends injury from
119
109 SUPREME COURT [Philadelphia,
[Coates v. Roberts.]
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 in 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 show 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 in-
junction 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 appro-
priate remedy for a mere stakeholder. Sometimes a trial at law
is directed, and after the plaintiff in the bill has no more con-
cern 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 adminis-
tration 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
r*110l anotner > tne P rac tice of permitting *a party to inter-
J plead, has long been well known, and in some cases, the
courts compelled a person to interplead, or more properly, to ap-
pear and take defence in a suit, or to be forever barred. And
by an act of assembly, 16th 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 recogni-
tion 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, <Y.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 tran-
script of his judgment to the prothonotary of the Common Pleas,
120
4, 1833.] OF PENNSYLVANIA. 110
[Coates v. Roberts.]
whose adjudication thereon shall be final. Under this act the
practice has been in some countries 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 re-
cognition 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 con-
cerned ; but for some cause, he did not appear at the trial ; no
witnesses were examined, and a verdict and judgment were ren-
dered 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 inter-
plead, and put in a plea, &c., was barred, although he afterwards
neglected the defence, aud 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 *Judge Yeates, whose practice began in r*iii-i
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 in-
terested 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 or-
dered, the name of the other claimant is substituted as defend-
ant, 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 per-
mitted or compelled to defend the suit, and show his right. If
after appearing and pleading, the defence is neglected or aban-
doned, the party is forever barred. Much more will this be the
case if a party defends the cause and loses it.
121
Ill SUPREME COURT [Philadelphia,
[Coates v. Roberts.]
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? I do not understand this
to be denied, if the proceedings have been fair. Some ques-
tions have been made as to the necessity of the garuishee
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 gar-
nishee, may recover again from him. The prior and subse-
quent cases do not say so, and it is not necetsary to give an
opinion on the subject, because our acts of assembly do not
require it ; 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 at-
tachment 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 com-
pelled to pay it over again ;" and after reviewing the cases, he
conies 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 pro-
ceeded 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
r*119l ^ a ^ n m q ues tion *between the same parties, or privies;
J and the decision of a court on a special point, on which
a court has extensive 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 conclu-
sive on all the world, when coming incidentally before another
court. M'Kinney v. Crawford, 8 Serg. & Rawle, 354. Who-
ever 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
122
Feb. 4, 1833.] OF PENNSYLVANIA. 112
[Coates v. Roberts.]
the defendant's title against the covenantor, unless he had no-
tice ; but if he had notice, and especially if he defended the suit,
it is conclusive. Leather v. Poultuey, 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. 129.
But it is said, the court did not answer the 4th point sepa-
rately 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 proposi-
tions to be submitted to the court, are often drawn up 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 in-
tentions 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
trying, 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 r*ii<yi
*case, that trial, verdict, and judgment, were conclusive L
on the matter now trying, unless there were collusion and
fraud in Roberts. If the jury in this case found there was
123
113 SUPREME COURT [Philadelphia,
[Coates v. Roberts.]
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 consid-
ered. Roberts was not bound to take a writ of error ; a stake-
holder, 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.
Cited by Counsel, 2 Wh. 324; 3 Wh. 410, 606; 2 W. & S. 200; 7 H. 127;
1 Wr. 174 ; 3 Wr. 57 ; 4 S. 399 ; 6 S. 457 ; 13 S. 250 ; 15 S. 360 ; 24 S. 309 ; 29
S. 363, s. c. 2 W. N. C. 326 ; 6 W. K C. 455 ; 10 W. N. C. 463.
Cited by the Court, 9 Barr, 52; 1 H. 458 ; 1 J. 52 ; 9 H. 449 ; 12 H. 268 ; 1
C. 301 ; 10 C. 228 ; 1 S. 140 ; 7 S. 118.
[PHILADELPHIA, FEBRUARY 4, 1833.]
Magoffin, Administrator of Patton, against Patton and
Others, Executors of Patton.
Testator bequeaths to each of his children, six thousand dollars, to be paid
to them respectively, as they severally arrive to lawfrl age, or on the day of
marriage, which ever may first happen. The residue of his estate, whatsoever
and wheresoever, he devises, and bequeaths to be equally divided among all
his children, (naming them,) when his youngest child arrives at lawful age, to
hold to them, their heirs, executors, administrators, and assigns, in equal shares,
as tenants in common and not as joint tenants. He then by his will declares,
that if either of his above-mentioned children die under age, and without leaving
issue, the share given to the child so dying, shall be equally divided, share and
share alike, among all his surviving children, and the lawful issue of any of his
said children, or of any grandchild, or grandchildren, who may then be dead, hav-
ing left such issue, as tenants in common in fee, such issue, if one person only,
or if several persons, as tenants in common, in equal shares in fee, always tak-
ing such part as his, her, or their parent or parents would have taken, if living.
The devises and bequests above mentioned, were the only provision which the
testator made for the maintenance of his children. His personal estate was
124
Feb. 4, 1833.] OF PENNSYLVANIA. 113
[Magoffin admr. v. Patton and others.]
about equal to the amount of his debts, the money legacies to his children, and
the bequests to his wife; and the "residue" of his property consisted almost
exclusively of real estate. One of his children died in his minority, unmar-
ried, and intestate. Held, that the bequest of six thousand dollars, vested in
him immediately on the death of the testator, and that his administrator was
entitled to recover it, with interest from the time of the deatli of the testator,
no other provision having been made for the maintenance of the legatee, dur-
ing his minority.
THIS was an amicable action instituted in this court, in which
John Magoffiu, administrator of Henry Patton, was plaintiff,
and Tace *W. Pattou and others, executors of Robert r*ii,n
Patton, deceased, defendants. It was entered for the "-
purpose of determining the right of the plaintiif, to recover a
legacy of six thousand dollars, which was bequeathed by the
defendant's testator in his last will and testament, to the intes-
tate of the plaintiif, who claimed it with interest from the time
of the testator's death. A case was stated for the opinion of
the court, and the questions arising upon it, were argued by
Purdon, for the plaintiff, and by Stroud and Bradford for the
defendants.
Everything that is material in the case will be found in the
opinion of the court, which was delivered by
KENNEDY, J. From the case as stated and agreed on by the
parties for the opinion of the court, it appears, that Robert Pat-
ton, the testator, by his will, dated the 12th day of December,
1813, and proved the sixth of January, then next following,
after giving to his wife certain bequests of personal property,
and also one-third part of all the rents, income, and profits, of
his real estate, during her natural life, bequeathed to his children,
of whom Henry, the intestate of the plaintiff, was one, in the
words following to wit: "4. Item, I give and bequeath to each
and every, my children, the sum of six thousand dollars a piece,
to be paid them respectively, as they severally arrive to lawful
age, or on the day of marriage, whichever may first happen.
5. Item, All the rest, residue, and remainder of ray estate, whatso-
ever, and wheresoever, I give, devise, and bequeath to be equally
divided among all my children, (when my youngest child arrives
at lawful age,) namely, John C. Patton, Robert B. Pattou,
Cornelia Patton, William Patton, Mary Patton, Henry Patton,
and Catherine Patton, to hold to them, my said children, their
heirs, executors, administrators, and assigns, respectively, in
equal shares as tenants in common, and not as joint tenants.
6. Item, My will is, I do hereby provide, that if any or either
of my above-mentioned children shall happen to depart this life,
under lawful age, and without leaving any lawful issue, that
then the part or parts, share or shares devised and bequeathed,
125
114 SUPREME COURT [Philadelphia,
[Magoffin adrar. v. Fatten and others. J
by this my will, in my estate, to any or either of them, my chil-
dren so dying, shall go to and be equally divided, share and
share alike, among all my surviving children, and the lawful
issue of any of my said children, or of any grandchild or
grandchildren, whom may then be deceased, having left such
issue, as tenants in common in fee ; but such issue of any my
deceased child or children, grandchild or grandchildren, if one
person only, or if several persons, as tenants in common in
equal shares in fee, always taking only such part or share
thereof, as his, her, or their parent or parents would have had,
and taken under, and by virtue of this my will, had he, she, or
they been living."
The testator appointed five executors, of whom the defend-
ants in this action, are the survivors, giving them power to sell
his real estate for the payment of his debts or legacies. The
f*1 1 ^~\ Devises and bequests *already recited, were the. only
J provision which the testator made for the support and
maintenance of his children. The personal estate was about equal
in amount to that of his debts, and the money legacies to his chil-
dren, and bequests to his wife, above mentioned ; so that the
" rest, residue, and remainder of his estate," consisted almost
exclusively of real property, the income of which has not, in
any one year, exceeded thirteen hundred dollars.
The children of the testator were born in the following order
of time. John C., on the 14th of January, 1793. Robert B.,
on the 25th of September, 1794. Cornelia, on the 23d of No-
vember, 1796. William, on the 23d of August, 1798. Mary,
on the 13th of August, 1800. Henry, on the 14th of April,
1804, and Catherine, on the 4th of July, 1813. The five first
named of them, received each from the executors at lawful age,
or marriage, six thousand dollars, and the four first of them
were paid their respective six thousand dollars anterior to 1820.
Henry Patton died in his minority unmarried and intestate, on
the 29th day of March, 1820, upon whose estate, letters of ad-
ministration were granted in due form to the plaintiff.
Upon this state of facts the plaintiff claims the six thousand
dollars bequeathed to Henry, his intestate, as a legacy which
vested in him immediately upon the death of the testator, the