
    Nicholson against Eichelberger, Sheriff.
    
      Monday, May 28.
    Where the merely3" * and the* suit is instituted by trylhe right" or athlrd son, to money ant’Thands!'1' notice of takmg a deposition on behalf vento such third person; a notice to the defendant is 'not sufficient.
    In ERROR.
    THIS cause came before the Court oft a writ of error to the Court of Common Pleas of York county, in a suit brought ^ Samuel Nicholson, the plaintiff in error, against Jacob Eichelberger, sheriff of York county.' On the trial, the deposition of Thomas Bidwell was offered in evidence on the part of plaintiff, and rejected by the Court. A bill of exceptions was taken by the plaintiff, and the only question was, whether the deposition was evidence ? The objection to it was, that notice of the time and place of taking it was not given to 1 ^ ° r a certain Matthew Duncan. Notice was given to the defend^ ’n the action, and the plaintiff contended that was sufficient. The objection was founded on the following cir- ° cumstances t -
    An action had been brought in the name of John Nicholson, for the use of Matthew Duncan, against John Clark, in which judgment had been entered for the plaintiff. An execution was issued, and levied on the real estate of Clark, which was sold to Matthew Duncan, by virtue of a writ of venditioni exponas, directed to the defendant in this suit, then sheriff of the county of York. Either before, or about the time of the return of the venditioni exponas, Samuel Nicholson, the plaintiff in this suit, filed in the office of the prothonatory, a claim to the money recovered in the action against Clark. He denied the right of Matthew Duncan to any part of that money, and tendered an issue to the said Duncan to try the right to the same. This claim was signed by Samuel Nicholson, and, in consequence'of it, the present action was entered on the docket. It was entitled “ An amicable action, in case, to try the right of the plaintiff to the money arising from the judgment and execution in the above cause. (The-cause of John Nicholson, for the use of Matthew Duncan, against John Clark.) It is admitted, that the defendant has levied and received the monies on the sale in the above suit. To be tried on its merits,” ' Under all these circumstances, the Court of Common Pleas considered Samuel Nicholson and Matthew Duncan, as the parties really interested in the present suit, and were, therefore, of opinion, that notice of the taking of Bidzvell’s deposition' ought to have been served on Duncan.
    
    
      Cassat an'd Hopkins, for the plaintiff in error.
    The plaintiff was not bound to give notice to Duncan. He gave notice to the defendant not to pay the money to Duncan, and then brought this suit to recover it. Duncan is no party to this suit, either in fact or by the intent of the parties ; and the notice can be legally served only on a party. The defendant is not merely the nominal, but the responsible person, to whom alone the plaintiff looks. He is to be considered as the agent of Duncan. This deposition has been taken for three or four years, and, if Duncan desired it, he might, on application to the Court, have procured an order for a cross-examination, or for a new deposition ; whereas, if the judgment be now affirmed, all opportunity is lost of trying the merits of the case. They cited 2 Bac. Ab. 606, Evidence, E., that in some cases in chancery, where a leading interrogatory is excepted to, the Court will order new interrogatories.
    
      Barnitz and Buchanan, contra.
    This action was really between the plaintiff and Duncan s the defendant being only a stakeholder. The plaintiff came into Court and tendered an issue to Matthéw Duncan, and afterwards this amicable action was entéred, for the sole purpose of trying the dispute between them. The defendant never received the money, though it was agreed, pro forma, that it should be considered to be in his hands. Notices of the taking of other depositions were served on Matthew Duncan. As to the argument, that the objection ought to have been sooner made, they stated that the deposition was never filed, nor produced till after the trial commenced, so that it was impossible to object sooner. The chancery practice does not correspond with our practice. In chancery, the commission is opened and depositions read, in the presence of both parties, and that is ' die time for making objections, and applying to the chancellor for such order as the case requires. In Pennsylvania, the objection to the deposition, for want of notice, is usually made on the trial. ’
   The opinion of the-Court was delivered by

Tilghman, C. J.

The Court of Common Pleas had better means of knowing the real character of this suit than we possess, because all the proceedings previous to the trial were in that Court. Enough, however, appears on the record to shéw, that the dispute was really between .S’. Nicholson and Duncan, and that the sheriff was only a stakeholder. It was of no importance to the sheriff to which party the money belonged. He himself had no claim to it, but was ready to pay it to whomsoever had the right. To ascertain who had the right, the present action was instituted. Samuel Nicholson had no dispute with the sheriff. In the claim which he filed in the prothonotary’s office, which led to the institution of this suit, he tendered an issue to Matthew Duncan. These are his expressions. If Duncan, then, was his real antagonist ; if Duncan was the person who was to gain or lose by the event of the suit, and it was a matter of no concern to the sheriff in whose favour it should be decided, Duncan was the person who should have had notice of the taking of the depositions of witnesses, because he was the only person to be affected by their testimony. I am of opinion, therefore, that there was no error in rejecting the deposition of Bidwell, and, consequently, the judgment'should be affirmed.

Judgment affirmed.  