
    *George Fitzgerald against Andrew Caldwell, surviving partner of James Caldwell.
    A garnishee is not liable to pay interest pending an attachment, unless perhaps as between him and the defendant in the attachment where he gives no notice of the attachment for a long time to such defendant.
    
      Arthur Vance, Richard Caldwell and Robert Vanee, were joint partners in trade at Dominica; Hugh Moore and Alexander Johnston at St. Kitts. The former house was indebted to the latter; and the partnership of Andrew and James Caldwell of Philadelphia, being considerably indebted to the former, Robert Vance, surviving partner of Vance, Caldwell and Vance, gave a letter of attorney, on the 27th of May 1780, to George Fitzgerald, the plaintiff, to collect their debts in Pennsylvania. On the 8th April 1782, Andrew and James Caldwell paid Fitzgerald 6600I. in notes and acceptances, as attorney of Vance, Caldwell and Vance, and gave him their note for 5000I. “provided so much appeared to be “due them from the house of Vance, Caldwell and Vance.”
    On the nth May 1782, Robert Vance gave a second letter of attorney to the said Hugh Moore and George Fitzgerald, to collect their debts in Pennsylvania, which was accompanied by a letter of the same date, from the said Vance in Dominica, to the said Moore in St. Kitts, informing him that ‘ ‘ he had empowered him to receive the debts, wherewith to “pay off the just demand against this unfortunate partnership. ” By another letter, dated May 1782, he apologizes to Moore for continuing the plaintiff in the letter of attorney, as he had been formerly authorized for this purpose. It appeared by an account current, stated on the nth May 1782, that the balance due from Vance, Caldwell and Vance, to Moore and Johnston, was 8459I. 13s. nj^d. Moore arrived in Philadelphia the latter end of July, or beginning of August 1782, and pressed the defendants for settlement. Early in 1783, several letters passed between him and James Caldwell, (Andrew Caldwell being then much indisposed with the gout) and he passed one receipt to Andrew and James Caldwell for 300I. on account of Vance, Caldwell and Vance.
    On the 29th March 1783, a foreign attachment was sued out of the Court of Common Pleas of Philadelphia county, in the name of John Caldwell, (of Ireland,) against Robert Vance, as surviving partner of Vance, Caldwell and Vance, and their property was attached in the hands of Andrew and James Caldwell; a second attachment was sued out afterwards on the same day, in the name of William Caldwell, and levied in the same way, upon which judgments were entered in the usual course in December 1783. Moore and Johnston sued out a third attachment on the 30th October 1783, and levied it in like manner. *John Mitchel and Gay ¡-*0^0 sued out a fourth attachment on the ; L Francis Feariss sued out a fifth attachment on the 23d April 1785; and Hugh M’Cullough sued oxit a sixth attachment on the 10th June 1785, which were also severally levied on the property of Vance, Caldwell and Vance, in the hands of Andrew and James Caldwell aforesaid. A suit was likewise brought on the aforesaid note of 5000I. by one Hamilton as indorsee of Fitzgerald to March term 1784, which was after-wards discontinued on the 21st August 1787, it being apprehended that the same was not negotiable.
    In 1785, the house of Vance, Caldwell and Vance failed, and their effects were assigned to their creditors.
    In June 1786, an inquisition was executed in John Caldwell’s suit, and the damages were ascertained at 1985I. 9s. 3d. A scire facias issued against Andrew Caldwell the surviving partner (James Caldwell having died in 1783) in the Common Pleas to September term 1787, which was removed into this court in the September term following.
    The present action was brought on the note for 5000I. by the now plaintiff, for the use of Moore and Johnston to September term 1787, and immediately removed. A special reference was appointed therein and a report made to October 1790, and likewise in a suit brought by Robert Vance as surviving partner against Andrew and James Caldwell (removed to September term 1787;) but upon a re-consideration of the said reports by agreement, the sum of 5009I. 5s. id. was found due from the defendant in the former suit on the note, and 4016I. 9s. 4d. in the latter suit, the latter sum being calculated up to the 8th April 1782, the former sum to the 29th January 1791, and the reports returned to November 1790; and 20,000 dollars in public certificates were delivered up by Andrew Caldwell, in pursuance of the opinion of the referees.
    On the 6th January 1792 the action of Fitzgerald against Andrew Caldwell surviving partner came on to be tried in this court; .when after a full hearing and the jury.not agreeing in their verdict, it appearing that the matter in controversy could not be finally determined in that suit, but that the defendant might be again subjected to the payment of the money, in case another jury should differ in opinion, as to the persons who had the legal and equitable interest in the money in his hands, a juror was withdrawn by consent. And under the recommendation of the court, it was agreed by the counsel, that the scire facias on the attachments of John and William Caldwell should be removed into this court, and the trials had thereon should determine whether the defendant *97fí] was to have credit in those * suits for the debts due to -* those plaintiffs respectively; and in case neither of those plaintiffs should recover, then Moore and Johnston to be entitled to the whole of the property attached.
    In pursuauce of this agreement, the cause of John Caldwell against Andrew Caldwell surviving partner was removed and came on in this court at the last term, when on trial upon the plea of nulla bona, after full argument, the jury were of opinion, that the equitable interest in the debt due from the house of Andrew and James Caldwell to the firm of Vance, Caldwell and Vance, was vested under the letter of the nth May 1782, and the other circumstances of the case, in Moore and Johnston; and that therefore the defendant had no effects in his hands of the house of Vance, Caldwell and Vance, subject to be attached at the suit of John Caldwell; on which verdict a judgment was entered for the defendant.
    A motion was now made by the defendant’s counsel, in the suit brought by George Fitzgerald, to stay further proceedings, on payment of the principal sum found by the referees, and costs.
    It was contended by Messrs. Lewis, Wilcocks and Tilgh-man on the part of the plaintiff in the present action, that the defendant was bound to pay interest for the money in the hands of the company from the 8th April 1782. And it was proved and admitted, that Andrew Caldwell the defendant *ook out the attachment at the suit of John Caldwell, and rocured a person to join in the attachment bond to the sheriff; but letters previous thereto from John Caldwell in Ireland, to Andrew and James Caldwell, were shewn to the court, requesting them to use their endeavours to procure the debt due to him from Vance, Caldwell and Vance, James Caldwell one of the. partners being brother of the said John. Three other letters in 1783, before the commencement of the first attachment, were also shewn, tending to prove that Andrew and James Cmd well, evaded a settlement and payment of the debt due to Vance, Caldwell and Vance.
    The plaintiff’s counsel urged, that Andrew and James acted collusively, and though they had a large sum of money in their hands due originally to Vance, Caldwell and Vance, wished to evade the entire payment thereof, both to them, and their creditors. The note to Fitzgerald was given to prevent attachments, and yet Andrew Caldwell himself takes out John Caldwell’s attachment eleven months afterwards. This case may be compared to the practice in chancery on a bill of interpleader. There * a person not knowing to ¡-*077 whom of right he ought to render a debt or duty, where L two or more persons claim the same by different interests, prays that they may interplead, so that the court may judge to whom it belongs, and he be thereby rendered safe in the payment. But the plaintiff in a bill of interpleader must annex an affidavit to his bill, that he does not exhibit it by fraud, or collusion with all or either of the defendants, or of any other persons, but only to be indemnified and to pay his debt safely to whom it belongs. 1 Harr. Cha. Pract. 265, z66. (7th edit. 114.) 1 Vez. 248. Such an affidavit would scarcely have been taken with safety by Andrew Caldwell.
    It is admitted that the general rule is, that where one is disabled from paying money to a creditor, he shall not pay interest, and this holds between the garnishee and creditor where the attachment is properly levied; though the reasonableness of it may be disputed, where the money is not brought into court within a reasonable time. Here the attaching creditor has failed in his suit; his attachment was ill grounded. The remedy of Andrew Caldwell should be by suit against the sheriff for laying the attachment improperly, or against the bail, on the bond given to the sheriff. But the acts of John Caldwell, or the other plaintiffs in the attachment ought not, on any principle, to affect Moore and Johns*ton. The property was attached as Vance’s, Caldwell’s and Vance’s, not as Moore’s and Johnston’s. There has been great delay and negligence in John Caldwell. He might have brought his writ of inquiry to March term 1784, and his scire facias against the garnishees to the June term following, and obtained a much earlier decision of the merits of this cause. But the object of Andrew Caldwell was delay, and as he originally instituted John Caldwell’s attachment, it must necessarily be supposed, that he acted no inconsiderable part, in conducting it afterwards for his own purposes. He has trifled most egregiously with Fitzgerald, and every one else, who had pretensions to any part of the money in his hands. He stands in no degree of equity to be exonerated from the payment of interest.
    Moreover, the attachments could not be pleaded in abatement. The authorities in the books vary; some say, attachments may be pleaded after condemnation; others, that they may be given in evidence. But if attachments are ill pleaded, or are avoided, garnishees, though they have paid the money, must pay it over again, and have no remedy either in law or equity. 2 Show. 373, 374. And it is fully settled, that if attachments are ill pleaded, they are no defence for a debtor against the original creditor. 7 Vin. 235, pi. 3. Cites Bro. Dette, pi. 100, 23. H. 6, 47. 7 Vin. 236. pi. 7, 8. Cites Cro. *2781 ^43- Brownl. 60. Cro. El. 598, 830. Form of -* an entry on a judgment against garnishee. Vid. Co. Entr. 143. Plaintiff relieved against a foreign attachment in equity. Cas. Temp. Finch. 299. And it has been adjudged, that a judgment in foreign attachment cannot be pleaded in bar without pleading an execution. Eaw Corpora. 247. 1 Rol. Rep: 108.
    On the other hand it was urged by Messrs. Ingersoll, Sergeant and J. M’Kean for the defendant, that the defendant in the principal case would be considered in no other light than as a mere stakeholder. The reasons offered why he should pay interest may be classed under four heads. 1st. Collusion— 2d. Delay.- — 3d. The assignment of the debt to Moore and Johnston. 4th. The form of pleading. The general rule, that a garnishee in a foreign attachment is exempted from interest, is acceded to. Indeed, we have customs of our own, as well as the city of Eondon, by which garnishees are invariably exonerated from the payment of interest, pending an attachment.
    
      As to fraud, it is denied, and the court will not presume it. Andrew Caldwell might well be justified in commencing the suit under the letter received from John Caldwell.
    As to delay, Moore and Johnston have little reason to complain of it; for the letter from Robert Vance which protected the property for them, did not make its appearance, nor was heard of until 1790, when the debt of Vance, Caldwell and Vance came before auditors for settlement. But the delay in any shape is not imputable to the defendant. All that Moore and Johnston had to do, to entitle them to a recovery, was to prove the assignment of the debt. If they wanted dispatch, they should have instituted a proper suit, removed it early, and carried it on with every degree of expedition, which the rules of the court would have allowed. Instead whereof, they bring a suit in the name of Hamilton, as indorsee of Fitzgerald, which they pursue for a length of time, and then are compelled to drop it, finding it to be misconceived. It is true, some delay has arisen from the interests of so many parties being opposed to each other, and from the sense the court entertained, that injustice might be done to the defendant, if different juries should vary, as to whotn the right to receive the money vested in. But this was inevitable, and arose necessarily from the nature of the litigation.
    As to the third reason, the defendant answers, how was it possible that he could establish the rights of the contending parties? Moore did not claim under the letter until 1790, but acted before as the mere attorney of Vance, Caldwell and Vance. *He treated it as the property of Vance, Cald- [-*2^9 well and Vance, and affirmed it to be such, by taking L 1 ont an attachment in the names of Moore and Johnston. But why when they came forward with the new idea of challenging the property attached in their own right, did they not immediately offer to indemnify the defendant, against the claims of the other suitors? Surely this would be no more than reasonable and fair, and what in point of common prudence would be expected by any man. Without such an indemnification, would not a requisition to pay the money over to Moore in his own right and Johnston’s, be deemed perfectly ridiculous by any one, who had known his former conduct ?
    And as to the form of the pleading, whether the attachment could be pleaded in abatement or not, or what is the proper mode of pleading it in bar, is now of no moment, because all those matters are waved by the agreement of counsel.
    On the whole, the simple point to be determined, independent of other circumstances, is, whether when money is attached, and is in the custody of the law, it is liable to pay interest? And we apprehend, it has been determined in the negative, in the case of British debts.
    The court proceeded to deliver their opinion as follows:—
   M’Kean, C. J.

Since the act of assembly passed in 1705, foreign attachments have been governed by the same rules as in London, and other cities in .England, where they have been used, as nearly as convenience and the words of the act would admit. In all these places as well as here, it has been the established custom, that a garnishee is not liable to pay interest pending an attachment.

During this period, the property attached is in the custody of the law. The debtor cannot pay his debt to the original creditor with safety, because he might be liable to pay it twice, and the law does not require any thing so unreasonable. A garnishee may be considered in the light of a stakeholder. The custom is ancient, it is founded in reason and justice, and has invariably prevailed.

If after a foreign attachment has issued, and been executed in the hands of a garnishee, the original creditor sues, the garnishee for the debt, he may plead the attachment in abatement; and if there is any fraud or. collusion in the transaction, the plaintiff should reply, that the attachment is kept on foot by fraud, which may be put in issue and determined by a jury, and if found for the plaintiff, he will recover his debt and legal interest, provided the contract will entitle him *2801 to ^ ^ * plaintiff in a foreign attachment J has obtained judgment against the garnishee, and received the money, or execution has been executed, and the original creditor shall afterwards sue the garnishee for the debt, he may plead the condemnation in the foreign attachment, and this will be an effectual bar for the amount. Besides which, the garnishee, by an act of assembly, will be entitled to his reasonable expences.

This, I conceive, to be the rule in such cases.

It appears, that the defendant in the present action, has been summoned as a garnishee of Vance, Caldwell and Vance, in six foreign attachments, and the plaintiff’s counsel have agreed he has pleaded them properly. There has been no replication, that they or any of them have been kept on foot by fraud; but the evidence to establish that fact is by consent, now submitted to the court; and the question before us, is, whether the defendant under all the circumstances of the case, is liable to pay interest to the plaintiff, while the attachments were depending?

The general rule is agreed, that a garnishee is not to pay interest, pending a foreign attachment. But it is contended, that the defendant ought to do it in this case, for several reasons. 1st, That the first attachment was taken out by the defendant. 2dly, That the great delay was solely owing to him. And, 3d'ly, That a verdict has been given in this attachment, finding that the garnishee had no goods or effects of Vance, Caldwell and Vance in his hands; and of course, chat it was wrongfully brought, and ought to have no more operation than if it had never existed.

There have been six foreign attachments brought, in each' of which the defendant has been summoned as a garnishee, and no fraud or collusion has been alledged in the five last, one of which was brought by the real plaintiff in this action, as early as the 30th October 1783, and is still depending. The note to the plaintiff was payable on the 8th April preceding, so that there was but 6 months and 23 days interest then accrued, which is the whole time for which interest can be demanded from the defendant; because in Moore’s and Johnston’s attachment there could be no collusion. With respect to John Caldwell’s attachment, there does not appear sufficient evidence to ground an opinion that it was commenced by collusion. Fraud is not to be presumed, it must be proved. It is certain there was then a just debt of near 2000I. due to him, and the only thing which prevented his recovering in the attachment was, that the debt due from Andrew and James Caldwell to Vance, Caldwell and Vance had been ten months before assigned in equity to Moore and Johnston, according to the opinion of the jury. But at any *rate this circumstance was unknown to both John r*noi Caldwell, and Andrew Caldwell, and James Caldwell *- at that time, and for years after, which put it out of their power even to suspect it. When it is considered also, that John and James Caldwell were brothers, and that Richard Caldwell, of the house of Vance, Caldwell and Vance, was another brother, it cannot be imputed to James Caldwell as a crime, that he wished to secure a just debt due from one brother to another; the contrary would seem rather unnatural. But it appears to me, that James Caldwell had authority to commence this attachment for John, from letters he had theretofore received from him, and which have been read in court. Be this as it may, no objections on the score of fraud have been raised against William Caldwell’s attachment, which was taken out on the same day with that of John Caldwell.

2dly, As to the delay, there is little ground for ascribing it to the defendant in this action. It was rather owing to the plaintiff himself, by first bringing his attachment ana keeping it on foot, and by bringing a wrong action in the name of Hamilton, which depended till August 1787, and was then discontinued; and lastly, by not speeding his present action. He and his counsel were probably doubtful in what way to prosecute his claim, so as best to serve him. It has indeed been an intricate affair.

3dly, As to the event of John Caldwell’s attachment, it was impracticable for the defendant to foresee it. The plaintiff in this action has been so fortunate as to obtain a verdict for the defendant in John Caldwell’s suit. But how could the defendant know that this would be the case, until it was determined? It was really a nice question. Let a foreign attachment be determined whatever way, the garnishee is excusable by law, from paying interest in the mean time. The defendant in such attachment has his remedy against the plaintiff or the sheriff. The garnishee is brought into court by compulsion, and should not suffer for doing what the law enjoins.

On the whole, I can discover nothing to make this case an exception to the general rule, and am therefore of opinion that the defendant is not liable to pay interest to Vance, Caldwell and Vance, or their assignees, while the foreign attachments were depending, as they were brought for more money than the defendant owed.

Shippen, J.

The same evidence often makes different impressions on different minds. I do not impute fraud to the defendant; but it appears to me, that Andrew and James Caldwell have acted officiously in this business under all its *9891 circum*stances; and I do not think that the steps they J themselves have taken, should exempt them from the payment of interest, at least until the time of commencement of the attachment in 1785.

Yeates, J.

The general principle I take to be as stated by the Chief Justice, that money bona fide attached, while in greemio legis, is not subject to the payment of interest. There may be possibly, however, exceptions to this rule, as between the garnishee and the defendant in the attachment, as when such garnishee gives no notice of the attachment for a considerable length of time to such defendant, and thereby prevents him from entering special bail, or defending the suit. (Vid. Hen. Blackst. 683.)

There is not sufficient evidence of fraud in the defendant, or his deceased partner, and the law will not presume it. The circumstance of the defendant’s interfering with respect to the attachment taken out by John Caldwell, weighs not greatly in my mind, when I consider the proofs and letters produced, and the relation which subsisted between his co-partner and the plaintiff in that attachment.

Moore and Johnston actually brought their attachment on the 30th October 1783, and levied on this property as a debt due from Andrew and James Caldwell, to Vance, Caldwell and Vance, and at the same time they claim it by virtue of a secret equitable assignment. By this suit they affirm the property to be in Vance, Caldwell and Vance, which they have disaffirmed on their defence on the trial of John Caldwell’s attachment. While the different attachments were depending, and no one could foresee the event, it appears to me highly unreasonable to have expected that the garnishees should pay the money, without the fullest indemnification; and therefore, I am of opinion, that no interest is demandable of them pending the attachment.

Cited in II S. & R., 189, where it was decided that a foreign attachment which, after pending some time has been compromised, is a good plea in bar, so far as respects interest, to an action against the garnishee, to recover the debt attached; and it is error to refuse to permit such a plea to be entered at the trial.

Explained in 13 S. & R., 226, where Duncan, J., says: “Fitzgerald v. Caldwell, as reported in 1 Yeates, 274, seems to convey the opinion of Chief Justice McKean, that the interest only ceases on the sum for which the attachment is laid; he says no interest is 'to be allowed in that particular case, because the attachment was laid for a larger sum than the debt attached.”

Cited in 2 W. & S., 208, to support the proposition that if the judgment in an attachment is equal to, or exceeds the amount demanded from the garnishee on the original debt, it is a flat bar; if for less, it is a bar pro ta?ito only.

Cited in 9 Pa., 470, where the court says : “ Ret a foreign attachment be determined which way it may, the garnishee is excused from paying interest in the mean time.”

Bradford, J.

declined giving any opinion, as he was formerly concerned as counsel in the cause.

Note. — A writ of error was taken out hereupon, returnable to the High Court of Errors and Appeals; where it appeared by a written memorandum signed by counsel, that it was agreed that “the judgment entered for the sum found by the “referees, should be absolute, but await the trial of the at- ‘ ‘ taclnneuts, and that if any thing should be recovered there“on against the said Andrew Caldwell, the same should be “defalked, out of the said sum for which judgment was rendered as aforesaid, and execution issue for the residue only.”

*This agreement did not come before the Supreme [-*000 Court during the preceding argument, nor was it men- L tioned by any of the counsel.

The Court of Errors and Appeals on the 18th July 1793, ruled, that the parties were bound by the express terms of that agreement, and that the Supreme Court could effect no alteration in the judgment which was to be entered provisionally thereon. Their decree was as follows:

That the last judgment or decretal order of the Supreme Court, ‘ ‘ that Andrew Caldwell shall be discharged from the “ said judgment, on the payment of 4016I. 9s. 4b. to wit, the “principal sum found due to Vance, Caldwell and Vance, by 1' the second report of the referees, and all costs of suit, ’ ’ be reversed.

That the judgment of the Supreme Court rendered in the term of January 1791, in favour of George Fitzgerald the plaintiff in error, for 5009I. 5s. id. with the costs of suit, and by the agreement of the parties stated in the record made absolute in January term 1792, be and the same is hereby (according to the terms of the said agreement) affirmed and made stable.

And that the records and proceedings in this cause, and all things concerning the same, be remitted into the Supreme Court, that such further proceedings may be had thereon, as well for execution as otherwise, as to justice shall appertain: each party to pay their own costs on the writ of error.

Cited also in 44 Pa., 83, where it was decided that if a fund attached exceed the amount of the attaching judgment, interest is not chargeable from the maturity of the note to the time of the settlement, on so much as was necessary to pay it, but only on the unappropriated balance.

MEMORANDUM.

The Supreme Court opened in Philadelphia on the first day of September term 1793, but adjourned to the last day of the term, by reason of a malignant fever which then greatly raged, and carried off a great number of the citizens. No other business was done except receiving sheriff’s returns, and the entering of motions made by the different counsel.  