25 Pa. 299 | Pa. | 1855
The old common law process of interpleader is not much used with us, but it is not abolished, for we never consider an old remedy abandoned until we have an adequate substitute for it: 17 Ser. & R. 211, 314; 11 Id. 274; 9 Id. 323; 8 Id. 242; 1 P. A. Browne 82; 1 Miles 46. While, however, we receive the old forms, we modify them according to the analogies of our own general practice, and even enlarge their sphere according to the equitable principles of our common law: 4 Binn. 61; 4 Rawle 100; 9 State R. 51.
The principles of interpleading, and the cases in which it may be applied, are best exemplified in the practice in equity; but the form of the procedure in a common law case is very simple, and requires but little modification. It may be found very fully presented in the abridgments of Fifzherbert, Brooke and Viner, under the titles Garnishee, Enterpleader, and Interpleader, and in 2 Mod. Ent. 425, 427. The principle appears ‘in various forms in our law; as where heirs, devisees, or alienees come in on notice by writ, or by the party to defend for their interests, where a warrantee or landlord comes in on notice to defend an action of ejectment, and other cases: see Brightly’s Equity, 226.
Under our practice, where the middleman or stakeholder is sued, he may take the simple course of giving notice to the other claimant of the money or thing in controversy, to come and defend the action, or be barred of his claim. But this does not conclusively save the middleman from his liability to action by the other claimant ; for the latter, not being a party on the record, is not held barred by the judgment until the fact of notice is properly proved. The middleman is not, therefore, conclusively protected by such judgment, for his proof of notice may fail him. Besides, if the middleman fail, he will have to pay the costs himself, and may have no available recourse.
It would therefore seem more prudent for the defendant to pursue the regular common law form of filing his suggestion, admitting the debt or duty, and his willingness to pay or perform, and stating the claims of third persons, and therefore pray for a scire faóias to bring him in to interplead. Thus the third person, called, from his being warned, the garnishee, or, in other forms of procedure, the intervener, 3 Adams’s Ecc. R. 37; 1 L. Ecc. R. 599; 2 Domat 676, is compelled to come in as a party and set up his claim, and is concluded by the record.
By the service of the scire facias, the intervener or garnishee actually becomes a party, and if he makes default, the plaintiff will have judgment to recover the money or thing claimed from the defendant, and his damages and costs from the garnishee. If he comes in and disclaims, the plaintiff recovers of course from the defendant. If he defends unsuccessfully, the plaintiff will
If the middleman be sued by two claimants severally, he must sue out his scire facias to interplead in the suit first brought, or if they are both brought at once, then in the one in which the declaration shall be first filed, or which the Court shall direct. All these principles are plain, reasonable, and very easy of application.
In the present case they have been substantially, but not very regularly pursued. It was irregular for the defendant to deny the plaintiff’s claim, and for the intervener to come in at the same time and set up his claim to the money. These two sets of pleadings are totally incompatible and unallowable, and the plaintiff might elect on which of them he would join issue and go to trial. The intervener voluntarily made himself a party and was accepted as such; and, as was said by Chief Justice Tilghman in a similar case, 4 Binn. 65,, it does not lie in his mouth to say he ought not to have been admitted. Besides, it seems very plain from the record that all the pleadings were put in by the intervener, and were intended to try the title between him and the plaintiff.
It is objected that the judgment ought to have been against the defendant for the money in dispute, and against the intervener for the damages and costs only, and so it usually is when the plaintiff recovers. But the result is properly different here, because in this instance the defendant had paid the money to the intervener, and therefore out of his hands the plaintiff was entitled to' have it. The. plaintiff might possibly have claimed a judgment against the defendant notwithstanding such payment, but, under such circumstances, the intervener cannot complain that the judgment is against him.
Judgment affirmed.
