The opinion of the Court was delivered by

Had the claim of the present plaintiff been heard in the former suit brought by Burnside against Fleming, or had he enjoyed an opportunity to be heard and neglected it, there might be some reason for precluding him from this action. But it appears by the evidence, that neither of these was the case. He seems to have made efforts to interpose in that suit by his attorney’s appearing for Fleming and putting in pleas; but by the rules of the court it was necessary, in order that a trial should be had, that the defendant should file an affidavit of defence. This, Fleming did not do, and indeed, might well decline doing, because he did owe the money on the note, and it was immaterial to him to whom he paid it, provided he was protected in so doing against another action. Accordingly, Fleming filed no affidavit of defence, and judgment was entered, and the efforts made by the plaintiff to introduce his claim on that *508trial were defeated. I know of no mode by which the plaintiff could have obliged Fleming to make such an affidavit; and the plaintiff’s affidavit could not be received in its stead. The ordinary forms of proceeding in our courts do not allow a person claiming adversely to the plaintiff, to interpose and become a party, and thus introduce a question on the trial in the nature of a bill of interpleader, beside the one directly in issue. It would seem, therefore, as if the plaintiff had been defeated rather by the forms of proceeding, than by his own neglect of his rights, and that he never had an opportunity of being heard in the first suit, as stated in the plea. It would, therefore, be unjust to bar him in this. The cases cited by the counsel for the plaintiff in error, seem not to apply to the present case. They were proceedings in rem, which bind all who are parties, and to which those who are interested in the thing have a right to become parties. If they come in they are bound. But this is the case of a proceeding in personam, by a claimant in his own right to recover a debt due to him; another claiming that debt, has no legal right to interpose, and compel the defendant to try his rights, as well as the defendant’s, although if done, the decision would be binding.(a)

Judgment affirmed.