dissenting. That Judson is a creditor for a large sum of money actually advanced to Caldwell, is established beyond dispute; and it seems to me just, that he should have the fund in court applied to his claim, unless the persons claiming as attaching creditors have shown a better right. They have omitted to show such right.
If my brethren had thought it consistent with precedent, and in view of the peculiar circumstances of this litigation, to remand the whole cause, and so to give the defendants, by a new trial, an opportunity of remedying the oversight they have committed, I might have yielded to such a disposition of the cause* But I am unable to concur in the decree now made.