A TREATISE * ^ ON THE LAW OF SUITS BY ATTACHMENT THE UNITED STATES. BY CHARLES D. DRAKE, LL.D., ^ • CHIEF JUSTICE OF THE UNITED STATES COUKT OF CLAIMS. SIXTH EDITION, REVISED, CORRECTED, AND ENLARGED; AN APPENDIX, CONTAINING THE LEADING STATUTORY PROVISIONS OF THE SKVERAL STATES ANT) TERRITORIES OF THE UNITED STATES, IN RELATION TO SUITS BY ATTACHMENT. BOSTON: LITTLE, BROWN, AND COMPANY, 1885. T Entered according,' to Act of fk)ngress, in the year 1884, by CHARLES D. DRAKE, In the Office of the Librarian of Congress, at Washington. Univkhsity Prkss : John Wilson ani> Son, Cambridor. TO MY BROTHER-IN-LAW, ALEXANDER H. McGUFFEY, ESQ., OF CINCINNATI, AS AN EXPRESSION OF ADMIRATION, RESPECT, AND AFFECTION, THIS WORK IS DEDICATED. 66701? PREFACE TO THE SIXTH EDITION. The probability, if not certainty, that this is the last edition of tliis work which may be edited by me, has not diminished, but rather increased, my desire to make it more worthy of the favor with which the former editions have been received by the courts and Bar of the country. For that favor I would retm-n my grateful acknowledg- ment, with the assurance that on no previous edition has more careful and earnest labor been bestowed than on this. From the Reports pubUshed since the last edition was prepared, and others, five hundred and fifty new cases have been gathered ; several passages have been rewrit- ten ; new topics have been introduced and treated; the Index has been amended and enlarged; and the Appendix brought into conformity with the present attachment laws of the several States and Teri'itories. Though new matter equivalent to fifty pages, or more, has been added, the pages of the Treatise number now but eighteen more than those of the Fifth Edition. This has resulted from leaving out a number of judicial opm- ions, — heretofore occupying a considerable space, — and also a good many statements of illustrative cases. This has been done, however, only where it seemed clear to me that the practical usefulness of the book would not thereby be impaired. In every instance a sufficient num- viii PREFACE TO THE SIXTH EDTTIOX. ber of the cases have been retained in the text to exem- plify and elucidate the doctrines stated; and the references to the titles of those omitted have been carefully preserved in the notes. My belief is, that the work is now more deserving- than ever before of the favorable regard of those for whose use it is intended. Washingtox, D. C, October, 1884. PEEFACE TO THE FIRST EDITION. The necessity for a work on the law of Suits by Attach- ment in the United States occurred to me early in my pro- fessional life ; but I shared the then prevalent impression of the Bar, that the Attachment Acts of the several States were so dissimilar as to baffle any attempt at a systematic treatise on that subject, based on the jurisprudence of the whole country and adapted for general use. Some years since, however, in preparing for the argument of a ques- tion of garnishment, an examination of the Reports and legislation of a majority of the States satisfied me — and all subsequent researches have but confirmed the opinion — that the diversity in the statutes constituted in reality no impediment of any moment to the successful preparation of such a treatise. The purpose to prepare this volume was then formed, and has been prosecuted, at in-egular inter- vals, in the midst of other and more pressing avocations, until the result is now submitted to the profession. The value of the proceeding by attachment is every- where asserted in the reported opinions of our higher State courts, and is universally and practically illus- trated in the history of the Colonial, Temtorial, and State legislation of this country. Among the early stat- utes enacted, have always been those authorizing the preliminary attachment of the property of debtors ; and the general tendency has been, and is, to enlarge the X PREFACE TO THE FIRST EDITION. scope and increase the efficiency of this remedy. Upon these grounds alone the importance of this subject might, if necessary, be amply vindicated; but on that ])oint no doubt has at any time disturbed the prosecution of my task. My conviction is, that on no branch of the law is a treatise more needed by the profession in this country than on this ; and it is gratifying to know that such is the general opinion of my professional brethren, wherever the proposed preparation of this work has been known. It is now to be decided whether this attempt to supply an acknowledged need will be regarded with equal favor. The materials here wrought together are almost wholly American. Great Britain, the fountain of, and exercising continually a marked influence over, our jurisprudence generally, contributes in this department comparatively notliing. In that country, the limited proceeding under the custom of London gives rise to few cases which find their way into the courts of Westminster Hall. Here, however, the universal use of this remedy fills our Re- ports with cases presenting every variety of questions, and the lapse of time and the accumulation of adjudica- tions seem to make no sensible diminution in the annual number of reported cases, nor any great difference in their novelty or their interest. Hence a work of this description reflects in a high degree a legal system and a branch of jurisprudence peculiarly our own ; and I confess to somewhat of satisfaction at being instrumental ill presenting to the Bar of the United States a volume which, without intentionally slighting what is to be found in tlic English Reports on tlie subject, may be justly claimed to be thoroughly American. . . . CHARLES D. DRAKE. St. Louis, Missouri, July 1, 1854. TABLE OF CONTENTS. PASI Index to Cases Cited xvii CHAPTER I. SECTION Origin, Nature, and Objects of the Remedy by Attachment .... 1-8 . CHAPTER n. For what Cause of Action an Attachment may issue 9-37 a CHAPTER m. Absent, Absconding, Concealed, and Non-resident Debtors ; Debtors removing or fraudulently disposing of their Property ; and Debtors ■who fraudulently contracted the Debt or incurred the Obligation sued on 38-77 c CHAPTER IV. Liability of Corporations and Representative Persons to be sued by Attachment 78-82 CHAPTER V. Affidavit for obtaining an Attachment 83-113 CHAPTER VI. Attachment Bonds 114-183 CHAPTER VII. Execution and Return of an Attachment .,..,.... 183 a-220 Xii TABLE OF CONTENTS. CHAPTER VIII. SECTION Effect and Office of an Attachment 221-231 CHAPTER IX. Attachment of Real Estate 232-242 CHAPTER X. Attachment of Personal Property ..." 243-259 CHAPTER XI. Simultaneous, Successive, Conflicting, and Fraudulent Attachments 260-289 CHAPTER Xn. Custody of Attached Property 290-311 CHAPTER XIII. Bail and Delivery Bonds 312-343 CHAPTER XIV. Bailment of Attached Property 344-396 CHAPTER XV. Attachments improvidently issued, and the Means of defeating them 397-410 CHAPTER XVI. Dissolution of an Attachment 411-431 CHAPTER XVII. Notice to Absent Defendants by Publication 436-449 a TABLE OF CONTENTS. xiii CHAPTER XVIII. SECTION Garnishment. — General Views. — Division of the Subject . . 450-467 CHAPTER XTX. AMio may be garnished. — Corporations. — Non-residents .... 468-479 CHAPTER XX. "VVTiat Personal Property in the Garnishee's Hands will make him Uable 480, 481 CHAPTER XXI. What Possession of Personal Property by a Garnishee will make him liable 482-491 a CHAPTER XXII. The Garnishee's Liability, as affected by the Capacity in which he holds the Defendant's Property 492-516 b CHAPTER XXIII. The Garnishee's Liability, as affected by Previous Contracts touch- ing the Defendant's Property in his Hands 517-520 CHAPTER XXIV. The Garnishee's Liability, as affected by Previous Assignment of the Defendant's Property in his Hands, or by its being subject to a Lien, Mortgage, or Pledge 521-540 CHAPTER XXV. The Garnishee's Liability, as a Debtor of the Defendant. — General Views. — Division of the Subject 541-554 CHAPTER XXVI. The Garnishee's Liability, as affected by the Time when his Debt to the Defendant is payable 555-559 XIV TABLE OF CONTENTS. CHAPTER XXVII. SECTION The Garnishee's Liability, as affected by his having Co-debtors, and by the number of the Defendants and the Number of his Creditors • 560-572 CHAPTER XXVIII. The Garnishee's Liability, as a Party to a Promissory Note . . . 573-592 CHAPTER XXIX. The Garnishee's Liability, as affected by pre-existing Contracts with the Defendant or third Persons 593-597 CHAPTER XXX. The Garnishee's Liability, as affected by a Fraudulent Attempt by the Defendant to defeat the Payment of his Debts 598-601 CHAPTER XXXL The Garnishee's Liability as affected by an equitable Assignment of the Debt 602-615 a CHAPTER XXXII. The Garnishee's Liability, as affected by the Commencement, Pen- dency, and Comjiletion of Legal Proceedings against liim by the Defendant, for the Recovery of the Debt 616-627 a CHAPTER XXXIIL Answer of the Garnishee 62S-658 CHAPTER XXXIV. Judgment against the Garnishee 658 a-659 CHAPTER XXXV. Extent of Garnishee Liability, as to Amount, and as to the Time to which the Garnishment relates G60-671 TABLE OF C02^TENTS. XV CHAPTER XXXVI. 8ECTI0K The Garnishee's Right of Defence against his Liability to the De- fendant 672-690 CHAPTER XXXVII. The Garnishee's Relation to the Main Action 691-698 CHAPTER XXXVni. Where Attachment is a Defence, and the Manner of Pleading it . 699-723 CHAPTER XXXIX Action for Malicious Attachment 724-745 PAOB APPENDIX 663 INDEX 719 INDEX TO CASES CITED. A. Abbott V. Sheppard V. Stinchfield V. Warriner Abrams v. Johnson Accessory Transit Co ren Ackroyd v. Ackroyd Adams v. Avery V. Balch V. Barrett V. Cordis V. Filer V. Fox V. Laue V. Lockwood V. Newell V. Paige V. Robinson V. Scott V. Tyler V. Willimautic Linen Co. 612 Adler^-. Roth 256, 267 Adlum V. Yard 654, 655 Adoue V. Seeligson 245 AfEeld V. The People 129 a Agnew V. Leath 327 a Albany City Ins. Co. v. Whitney 317 Albee v. Webster Aldrich v. Brooks V. Kinney V. Woodcock Alexander v. Brown t'. Haden V. Harrison r. Hutchison V. Jacoby V. Pardue Alford V. Cobb V. Johnson Section 449 664 405 255 a, 256 ;. McCer- 176, 732 34 546, 588, 700 304 463, 497, 506, 511 665 7061 392! 503 111 246 277 216, 528, 610 518 516 199 550 87 a 453 418 108 733, 734, 743 174 162 a, 163, 175, 176, 726 115 95 133 Section AUard v. De Brot 698 Alleghany Savings Bank v. Meyer 659, 665 Allen V. Brown 95 V. Butler 381 r. Carty 374 V. Doyle 310, 344, 372 V. Erie City Bank 481 V. Fleming 108 V. HaU 536, 659, 660, 667, 685, 690 V. McCalla 255 a V. Megguire 536 V. Meyer 99 V. Morgan 583, 659 V. Russell 512 V. Watt 710 All er ton v. Eldridge 331 Alley V. Myers 262, 658 a Alston V. Clay 251, 509 V. Newcomer 05 American Bank v. Rollins 619 V. Snow 625 American Ex. Bank v. Moms C. & B. Co. 221, 229 Amos V. Allnut 126 Amoskeag Man. Co. v. Gibbs 588 Anderson v. Coburn 112, 446 a, 448 V. Doak 245 V. GrafE 204, 658 e V. Kanawha Coal Co. 113, 120 V. Odell 463 V. O'Reilly 75 V. Scott 207 V. Wanzer 565 V. Wehe 93 b V. Young 706 Andre i\ Fitzhugh 325 Andrews v. Herring 630 V. Ludlow 481, 482, 483, 539 Angier v. Ash 225 XVIQ INDEX TO CASES CITED. Anthony v. Comstock Archer v. Claflin V. Xoble Arendale v. IMorgan Argyle v. Dwinel Arledge v. White Armor v. Cockburn Armstrong u. Blodgett Arnold v. Brown Arriugton v. Sci'ews Arthur v. Batte Ashby V. Watson Ashmun v. Williams Atcheson v. Smith Atkins V. Kinnan V. Prescott V. Swope Atkinson v. Foxworth Atlantic F. & M. Ins. Co. v. Wil- son 658 e Atlantic Mut. Ins. Co. v. McLoon 27 Atlas Bank v. Nahant Bank 231 Austin V. Bodley 5 V. Burgett 37 a, 227, 331 V. Burlington 285, 344 V. Latham 93 ft V. Wade 222 Auter V. Steamboat J. Jacobs 105 Averill v. Tucker 512 Avet V. Albo 332 Ayer v. Jameson 374 Ayres v. Husted 275 Section 345, 386 106, 406 196 89 a 241 455, 543, 683 517 407 222 247 454, 619 637, 683 25G 696, 697, 711 87 b 561, 562, 570 222, 725 a 339, 341, 741 B. Babb V. Elliot Babcock v. Malbie Babe v. Coyne Bach V. Goodrich Bacon v. Daniels V. Leonard V. Thorp Badlam v. Tucker 245, Baere v. Armstrong Bagley v. Ward V. White Bailey v. Adams V. Beadles V. Hall V. Lacey V. Ross Baillio V. Poisset Bainbridge v. Alderson Baird v. Rice V. Williams Baker v. Fuller 351, V. Hunt 247 245 185 224 323, 381 237 373 291, 371, 539 165 a, 176 221, 224 a 271, 292 b 198 95 307 465 a 454 a, 536 223 "62 216 280 353, 372, 380 93 Section Baker v. Moody 525, 659 V. Warren 292 a, 353, 357 Balderston v. Manro 527 Baldwin v. Conger 205, 415 V. Jackson 290, 292 a, 358 V. Leftwich 229 V. Morrill 673 V. Wright 420 Ball V. Citizens' Nat. Bank 679 V. Claflin 262, 273, 285 V. Gardner 152 V. Gilbert 520 V. Liney 185 c Balliet v. Scott 594, 614 Ballinger v. Lantier 64 Ballston Spa Bank v. Marine Bank 465 a Baltimore v. Root 516 Baltimore & Ohio R. R. Co. v. Gal- lahue 469, 472, 479, 551, 559, 655 Baltimore & Ohio R. R. Co. v. McCullough Baltimore & Ohio R. R. May Baltimore & Ohio R. R. Wheeler Baltimore, O., & C. R. R. Taylor Bancker v. Brady Bancroft v. Sinclair Banfield v. Wiggin Bangs V. Beacham Bank v. Levy Bank of Alabama v. Ben-y V. Fitzpatrick Bank of Augusta v. Conrey 553 Co. I'. 705, 706 Co. V. 517 Co. V. 662, 692, 695, 697 246 204 454 6 353 534 107 115, 124 114 6, 122, 134, 415 V. Jaudon 262, 273 Bank of Chester v. Ralston 498 Bank of Fayetteville v. Spurliiiff 274 Bank of North America v. IVIcCall 529 Bank of Northern Liberties v. Munford 697 Bank of Northern Liberties v. Jones 491, 491 a Bank of St. Mary v. Morton 607 Bank of the State of Missouri v. Bredow 453, 453 a Bank of Tennessee v. Dibrell 516 a Banning v. Sibley 659 Bannister v. Iliggiuson 207, 219 Banta v. Reynolds 117, 185 Barber v. Robeson 25 Barkeloo v. Randall 118 Barker v. Esty 547, 548 V. Miller 291, 349 V. Taber 652 Barksdale v. Hendree 87 6 LNDEX TO CASES CITED. XIX Barnard v. Graves 487, £ 14, 674 d V. Moore 539 V. Sebre 101a Barnes v. Buck 27 V. Treat 499 V. Wayland 653 654, 655 V. Webster 151, 327 a Barnet's Case 60, 62 Barnett v. Weaver 499 Barney v. Douglass 588 Barr v. King 478 V. Perry 696 Barrett v. Spaids 732 a V. White 194 Barron v. Cobleigh 363, 391, 392 Barrow v. West 706 Barry v. Bockover 67 V. Fisher 570 V. Foyles 112, 318 V. Frayser 322 b, 323, 341 c V. Hogan 658 c Bartell v. Bauman 496 Bartlett v. Wood 550 Barton v. Albright 707 V. Barton 464 V. Smith 711 Bassett i'. Garthwaite 588 Batclielder v. Frank 344 Bate V. McDowell 115 Bates V. Days 455 a V. Forsyth 548 V. Jenkins 405 V. Killian 318 V. New Orleans, &c. R . R. Co. 474, 551 V. Plonsky 225 v. Robinson 91 Battles V. Simmons 640 Bauer v. Antoine 318 Baugh V. Kirkpatrick 453 a Baune v. Thomassin 10 Bausman v. Smith 21 Baxter v. Currier 465 V. Rice 208 V. Vincent 474, 707 Bayley v. Bryant 281 Baylies v. Houghton 581 Beach v. Abbott 351, 353, 332 V. Schraultz 199 V. Viles 683 Beal V. Alexander 321 322, 323 Bean v. Barney 658 a V. Bean 487, 659 V. Hubbard 195 V. Miss. Union Bank 667 V. Parker 386 Beardslee v. Morgan 147 Bebb ?'. Preston 659 ' Beck V. Brady ( Becker v. Bailies I Beckwith v. Sibley j Beech v. Abbott : Beecher v. James i Beekman v. Lansing Beers v. Arkansas j V. Place I Behi-ens v. McKenzie Behymer v. Cook Belcher v. Grubb Belknap v. Gibbens Bell V. Douglass V. Hall V. Jones V. Kendrick V. Shafer Bellows & Peck's Case Benedict v. Bray Bennett v. Avant Section 229 426 35 437, 448 144 255 a 516 a 267 176 244 a 624 543 252 113 639 647 354, 357, 381 425 115, 1.50 ■ 48, 108 V. Bro\\Ti 121 a, 152, 176, 308 V. Zabriski 87 Benson v. Berry 267 V. Campbell 27 a V. Holloway 697 V. McCoy 726 Bentley r. Goodwiu 225 V. Shrieve 509 a Benton v. LindeU 678 V. Roberts 321 Bergh i'. Jayne 94, 106 Bergman v. Sells 146 Bernal v. Hovious 248 Berry v. Anderson 696 V. Harris 571 V. Spear 219, 2-36 a Bessey v. Vose 236 a Bethune v. Gibson 221, 255 Bibb V. Smith 599 Bickerstaff v. Patterson 207 Bickford v. Rice 704 Bickle V. Chrisman 251, 658 bb, 661 Bicknell v. Hill 359, 373 V. Trickey 258 Bigelow V. Andress 225, 453, 454 V. Willson 222 Biggs V. Blue 90 V. Kouns 453 Bildersee v. Aden 313 a, 319, 323, 341 b Bills V. Nat. Park Bk. 589 Bimeler v. Dawson 85 Bingham v. Lamping 482 V. Rushing 545 a V. Smith 619, 620 Birdsong t'. McLaren 91, 137 Bishop V. Fennerty 101 a, 112 V. Holcombe 608 V. Warner 192 XX INDEX TO CASES CITED. Bishop V. Young Bissell V. liuntiugton Section 551 365, 379, 395, 427 V. Nooney V. Strong 205 465 Bivens v. Harper 512 Black V. Black 622 V. Paul 614, 653 V. Scanlon 104 a V. Zacliarie 30 Blackburn v. Davidson 550 Blackwood v. Jones 112 Blair v. Cantey V. Rhodes 251, 500 550, 658 a Blaisdell v. Ladd 275, 453, 543 Blake t\ Camp V. Hatch 416 250 V. Kimball 374 V. Shaw 222, 426 V. Williams 597 Blakley v. Bird 95 Blanch ard v. Cole 684 V. Coolidge 240 V. Groussett 28 V. Vargas 653 Blaney v. Findley Blatchley i'. Adair Bleven v. Freer 120 339 392 Bliss, In re 87, 100 V. Heasty 5, 162 a, 437, 449 a V. Smith 451 a, 659 V. Stevens 374 Blodgett I'. Gardiner 664, 665 Bloom V. Burdick 85, 87 b Blum V. Davis 102 Blyler v. Kline 332 Boardman v. Bickford 51, 60 V. Cushing 685 r. Roe 548, 646, 617 Board of Commissioners v. Riley 244 a Boatwright i-. Stewart 166, 170, 173, 175, 179 a Bodega v. Perkerson 196 Bode't V. Nibourel 139 Bogart V. Dart 37 a Bogert V. Phelps 185, 185 a Boggs V. Bindskoff 55 V. Ilargrave 89 a Bolton V. Peim. Company 706 Bond V. Greenwold 322 h V. Padelford 349, 351, 353, 367, 368 V. Patterson 90 V. Ward 189, 1S9, 250, 253 a Bonnel v. Dunn 244 a Bonner v. P.rown 112, 127, 144, 411 V. Martin 658 q Boon V. Maul 732, 735 Boone v. Savage Boone County u. Keck Booth V. Rees Borden jj. Fitch Borders v. Murphy Born V. Staaden Bosbyshell v. Emanuel Section 95 516 113, 185 87 a 5 530, 579 , 93, 102 Boston, C, & M. R. R. Co. v. Gil- more 252 a Boston & Maine Railroad v. Oliver ' 685 Boston Type Co. v. Mortimer 685 Bostwick V. Beach 460, 658 h Boswell V. Otis 5, 85 Bottom V. Clarke 451 a Bourne v. Hocker 139, 230 V. Merritt 244 a Bowden v Schatzell 509 Bowen v. First Nat. Bank 80 V. Slocum 103 Bowker v. Hill 424, 465 a, 481 Bowler v. European & N. A. R. Co. 489, 509 a Bowley v. Angire 381 Bowman v. Stark 21^ Boyd u. Bayless 543 V. Boyd 121 V. Buckingham 107, 331 V. C. & 0. Canal Co. 469 V. King 205 V. Martin 163 Boyes v. Coppinger 401 Boykin v. Edwards 185 d Boyle V. Franklin Fire Ins. Co. 549 Boynton v. W\arren 290, 360 Brackett v. Blake 667 Bradbury v. Taylor 372 Bradford v. Gillaspie 249 V. McLellan 253 a V. Mills 478 Bradley v. Arnold 248 V. Kroft 115 V. Obear 246 V. Riclnnond 516 Brady v. Parker 52 Brainard v. Burton 212 V. Bushnell 265 V Shannon 631 Braley r. Byrnes 185 a V. Clark 310 V. French 240, 291 Branch Bank v. Poe 472, 557, 667, 608 Branch of State Bank v. Morris 148 a Brandon v. Allen 173 a Brandon Iron Co. v. Gleason 202 Brannon v Noble 708 Branson ?•. Shinn 402 Brash v. Wielarsky 90 INDEX TO CASES CITED. XXI Section Brashear v. West 251, 453 Brauser r. New England F. I. Co. 478 Bray v. McClury V. Wallingford V. Wheeler Braynard v. Burpee Brazier v. Chappell Breading v. Siegworth. Brealsford v. Meade Brecht v. Corby Bretney v. Jones Brickey o. Davis Bridge v. Bracken V. Ford V. Wyman Bridges v. North V. Perry V. Williams Bridaman, In re Briofdeu v. Gill 5, 88 516 594 697 528 662, 707 561 451 a 144 630 a 85 85 3o7 583, 659 292 94 511 454 6, 463, 487, 489, 541 487, 514, 525 289 203 210 h, 353 252 a 292, 301, 307 245 Briggs V. Block V. French V. Gleason V. Mason V. Strange V. Taylor Brigham v. Avery Brinegar v. Griffin 34 Briscoe v. Bank 51 G a Britt V. Bradshaw 653 Brittain v. Anderson 592 Britton o. Preston 588 Broadhead v. McConnell 87 a Brode v. Firemen's Ins. Co. 697 Brook V. Smith 700 Brooks V. Adams 85 V. Cook 494, 496 V. Hildreth 526 IK Stone 225 Brotherton v. Anderson 6o6- V. Thompson 334 Brower v. Smith 244 d Brown, Matter of 100 V. Ains worth 418 V. Ashbough 61 V. Atwell 381 V. Blanchard 408 V. Brown 689 a V. Coats 36, 414 V. Cook 349 V. Crenshaw 106 V. Crockett 396 V. Davis 204, 210, 463 V. Dudley 707, 710 V. Finley 516 V. Foster 525 V. Harris 413 Brown v. Heath V. Hinchuian V. McCluskey V. Massey V. Richardson V. Richmond V. Ridgway V. Scott V. Silsby V. Slate V. Somerville V. Union Ins. Co. V. Warren V. Whiteford V. Williams Brownell v. Carnley V. Manchester Section 480 99 87, 108 399 81 304 420 254 659, 660, 664 583, 659 700, 708, 711 545 a 683, 684 140 221 245 291, 292 d, 349, 367, 371 Bruce v. Cloutman 449 V. Coleman 154, 156, 159, 164, 166 V. Cook 87, 696 V. Holden 210, 271, 290 V. Pettingill 208, 346, 363 Brumgard v. Anderson 408 Brundred v. Del Hoyo 65 Bryan ??. Dunseth 67 V. Lashley 453 V. Smith 85 Bryant r. Fussel 81 V. Hen dee 144 V. Osgood 208, 256, 258 a Buchanan v. Alexander 512 V. Sterling 104 a Buck V. IngersoU 35 Buckingham v. Osborne 194 Buckley v. Lowry 87 Buckman v. Buckman 275 Buckmaster v. Smith 246 Buddington v. Stewart 248 Buft'ham v. Racine 516 Buffington v. Gerrish 246 Buffum V. Seaver 425 Buford t'. Welborn 650 Bulfinch V. Winchenbach 568 Bulklev V. Eckert 493 Bullard v. Hicks 660 V. Randall 611 Bullene v. Smith 74 Bullitt V. Winston 216 Bump V. Betts 729, 732 Bunker v. Gilmore 607, 717 Bunn V. Pritchard 113 Bunt V. Rheum 166 a Burcalow v. Trump 67 Burch V. Watts 336 a, 419 Burgess v. Clark 52 V. Stitt 92 xxu INDEX TO CASES CITED. Bnrke v. Whitcomb Buikhardt v. McClellan Burleson v. Milan Buiiiugame v. Bell Burlock V. Taylor ,Burnap v. Campbell Burnell v. Weld Burnham v. Beal V. Doolittle V. Folsom V. Fond du Lac V. Hopkinson Burnside v. McKinley Burrell v. Letson Burrill v. Jewett Burroughs v. Wright BuiTows V. Glover V. Lehndorff V. Miller V. Stoddard Burrus v. Moore Bursley v. Hamilton Burt r. Parish V. Perkins Burton v. District Township Section 551, 578 221, 236 506 251, 267, 270, 453 605 711 570 487 539 618 516 457 517, 526 251, 482, 506, 625 65 267 604 173, 730 a 61 Calahan v. Babcock Caldwell v. Ai-uold ?'. Coates V. Stewart V. Townsend CaUioun v. Cozzens V. AVare V. Whittle Calkins v. Lockwood Section 245 196 461, 545 452 460 11,415 437 624, 674 a 900 V. Knapp V. Smith V. W^ilkinson V. Wynne Busbin v. Ware Bushel V. Commonwealth Ins Buswell V. Davis Butler V. Borders Butterfield v. Baker V. Clemence V. Converse Buzzell V. Hardy Byars v. Griffin Byrd t;. Hopkins 282, 367 659 392 112, 144 389 658 c, 660, 713 170 o 176 186, 200, 200 a 588 420 79 289 196 246 297 384 244 a, 351 609 416 Cadwalader v. Hartley 579, 588 Cadwell v. Colgate 87, 106, 319 Cady V. Comey 501 Cahill V. Bigelow 595, 612 Cahoon v. Ellis 655 V. Morgan 451 b Caignett v. Gilbaud 566 Cain V. Mather 36 V. Rockwell 287 Cairo & St. L. R. R. Co. v. Ilindman 650 V. Killenberg 604, 609, 659 Callagan v. Pocasset Man. Co. 594 V. Hallowell 263, 472 Callender v. Duncan 140 V. Furbish 539, 643 Camberford v. Hall 116, 143, 262, 273, 697 Camden v. Allen 684 a Cameron v. Stollenwerck 707 Cammack v. Floyd 526 Cammann v. Tompkins 400 Camp V. Chamberlain 255 a V. Clark 599 V. Wood 85 Campbell v. Chamberlain 175 V. Johnson 249 V. Morris 403 V. Js^esbitt 452 V. Ruger 263 V. Wilson 111 Canada v. Southwick 294, 389 Canaday v. Detrick 575 Canal Co. i'. Insurance Co. 527 Candee v. Skinner 665 V. Webster 665 Canfield v. McLaughlin 337 Cannon v. Logan 102 V. McManus 406, 409 Caperton v. McCorkle 429 Cardany v. N. E. Furniture Co. 659 Carey r. Gunnison 170 a Cargill V. Webb 379, 380 Carland v. Cunningham 14 Carleton v. Ryerson 236 a V. Washington Ins. Co. 5, 449 Carlton v. Davis 199 Carpenter v. Gay 545 V. Pridgen 101 a V. Snell 373, 374 V. Stevenson 178 V. Turrcll 323 /; Carr v. Coopwood 414 V. Farley 352, 388 V. Van Iloesen 225 V. Waugh 604 Carrigan, The Olivia A. 455 g Carrington ;;. Didier 81 V. Smith 292 e, 300 Carri(]ue r. Sidebottom 635, 650 Carroll v. Fiuley 655 INDEX TO CASES CITED. XXIU Section Carroll v. McDonogh 701 Carson v. AUeu . 588 V. Carson 240 Carter v. Champion 239 V. Gregory 278, 279 Carty v. Feustemaker 539 Cary v. Gregg 224 Case V. Moore 460, 658 a Case Threshing M. Co. v. Miracle 499 Casey v. Davis 514, 717 Cason V. Cason 89 b Castle V. Bader 225 Catlin V. Lowrey 395 Cayce v. Ragsdale 409 Center v. McQuesten 525 Central Bank v. Prentice 539 Central Plank Road Co. v. Sam- mons 465 a Chadbourne v. Sumner 204, 210, 256, 271, 290 Chaine v. Wilson 67 Chamberlain v. Beller 189, 253 a V. Paris 5 Chambers v. McKee 697 V. Sloan 107 V. Yarnell 658 a Chandler v. Dyer 224, 239 V. Faulkner 705 V. Nash 85 V. Thurston 246 Chapin v. Conn. R. R. Co. 489 V. Jackson 517 Chapman v. Clough 35 V. Smith 294 V. White 611 V. Williams 465 Chariton County v. Moberly 57 €hase v. Elkins 24G V. Foster 658 e r. Haughton 588 V. Manhardt 665 Chatzel o. Bolton 570 Cheadle v. Riddle 92 Cheairs v. Slaten 706 Chealy v. Brewer 493 Cheatham t'. Carrington 81 V. Trotter 652 Cheddick v. Marsh 25 Chemung Bank v. Judson 87 a Chenault v. Chapron 409 Cheongwo v. Jones 700, 708 Cherry v. Hooper 550 Chesapeake G. Co. v. Sparks 539 Chesapeake & Ohio R. R. Co. v. Paine 471 Cheshire Nat. Bank v. Jewett 249 Chesney v. Francisco 61 Chicago & A. R. R. v. Ragland 480 Section Chicago, R. I. & P. R. Co. v. Mason 472, 480 Chilcote V. Conley 480 Childress v. Dickins 556, 652 V. Fowler 312, 318 Childs V. Barrows 214, 220 V. Digby 484 V. Ham 209, 296 Chipman, Matter of 50, 4C0 Chisolm, In re, 511 Chittenden v. Hobbs 37 a Chouteau v. Sherman 72 Chrisman v. Rogers 324 Christal v. Kelly, 319 Christie v. Unwin 85 Christmas v. Biddle 480 Church V. Knox 569 V. Simpson 659 Churchill v. Abraham 154, 166, 174 V. Fulliam 136 Cilley V. Jenness 294, 300 Citizens' Bank v. Payne 451 b City Bank v. Merrit 402 City Nat. Bank v. Cu^sp 124 a, 415 Claflin V. Iowa City 470 Clanton v. Lau'd 132, 416 Clapp V. Bell 228, 413 V. Davis 516 b V. Hancock Bank 541, 557 V. Rogers 453 V. Thomas 195, 244 a Clark, Matter of 445, 448 V. Arnold 46 V. Averill 480 I'. Boggs 510 V. Brewer 518 V. Brott 196 V. Brown 464 V. Bryan 317, 322, 448 V. Chapman 470 V. Cilley 525 V. Clark 493, 546 V. Clough 347 V. Few 530 V. Foxcroft 283, 288 V. Gaylord 388, 389 V. Gibson 520 V. Great Barrington 512, 703 V. HoUiday 5 V. King 550, 575 V. Lynch 246 ?'. Mobile School Com'rs 516 V. IMorse S3 b, 369 V. Powell 665 V. Pratt 61 V. Roberts 87 V. Viles 481 V. Ward 64 XXIV ESTDEX TO CASES CITED. Section Clark V. Wilson 24, 415 Clarke v. Faruum 457 V. Gary 204 V. Meixsell 696 Claussen r. Easterling 404 Clay V. Neilson 207 V. Scott 263 Clement v. Clement 551 Clements i;. Cassilly 336 Cleneay v. Junction R. E . Co. 588, 674 a Cleveland v. Clap 634, 656 V. Rogers 85 Cleverly v. Brackett 35 Clise V. Freeborne 700 Clodfelter v. Cox 607, 625 Closson V. Morrison 193, 252 Cloud V. Smith 399 Clough V. Buck 588 Clymer v. Willis 251, 506 Clymore v. Williams 5, 204 Coates V. Roberts 706, 714, 722 Cobb V. Bishop 545 V. Force 106 V. O'Neal 420 Coble V. Nonemaker 543, 600* Coburn v. Ansart 496, 515, 546 V. Currens 708 V. Hartford 559 Cochran v. Fitch 5,706 Cockey v. Leister 509 a V. Milne's Lessee 221 Cockrell v. McGraw 419 Coddington v. Gilbert 244 f/ Coe V. Rocha 659 V. Wilson 246 Cofield V. Tilton 282 o Cogswell V. Mason 242 Cohen v. Manco 87, 91 V. St. Louis P. I. Co 665 Colby IK Coates 494, 511 Colcord V. Daggett 586, 58!) Cole V. Dugger 216 V. Flitcraft 706 V. Parker 188 V, Wooster 262, 508 Coleman's Appeal 5, 10 Coleman v. Bean 323 Collins r. Brigham 517 V. Duffy 422 V. Friend 460 V. INIitchell 342 V. Nichols 406 V. Perkins 194 a, 203 V. Smith 291, 374 Colson V. Wilson 244 rt Colt ;;. Ivos 528 Colvin V. Rich 57G, 579, 607, 717 Section Colwell V. Bank of Steubenville 446 V. Richards 353, 374 Commercial Bank v. Neally 498 V. Ullman 102, 107 Commercial Nat. Bk. v. C. M. & St. P. R. Co. 597 Commissioners v. Bond 516, 516 b V. Fox 588 V. Thompson 85, 89 b Commonwealth v. Brigham 292 e V. Mauley 247 V. Morse 349, 367 V. Stockton 196 Comstock V. Farnum 550, 575, 652 V. Paie 641 Conant v. Bicknell 251, 506 Cougdon V. Cooper 298 Couklin V. Goldsmith 132 V. Harris 66, 144, 148 Conley v. Cliilcote 480, 674 a Conn V. Caldwell 290 Connell v. Scott 256, 339 Connelly v. Harrison 525 Connoley v. Cheeseborough 583, 659 Conover v. Ruckman 506 Conrad v. McGee 54, 87, 88, 90', 102 Conway v. Armington 496 V. Butcher 224 V. Cutting 610 Cooky. Boyd 314 V. Dillon 490 V. Field 708, 710, 716, 722 V. Hopper 185 a V. Jenkins 91 V. W\althall 541, 545 Cooke V. State Nat. Bank 80 Cooper V. Hill 170 V. McClun 706 V. Mowry 362 V. Newman 195, 256 V. Peck 340 V. Reeves 415 V. Reynolds 5, 87, 448 V. Smith 91, 449 V. Sunderland 85, 89 b Cope V. U. M. M. & P. Co. 95, 418 Copeland v. Cunningham 129 a, 176 V. Weld 481 Copp V. Williams 244 b Corbyn v. Bollman 510, 643 Cordaman v. Malone 331, 341 d Corey v. Powers 464 Corner v. Mackintosh 196 Cornwall v. Gould 35 Corn well r. Hungate 697, 715 Corwin v. ]\Ierritt 85, 87 b Coston V. T'aige 98. 408 Cota V. Mishow 689 a INDEX TO CASES CITED. XXV Cotton V. Huey Cottrell y. Varnum Courier v. Clegliorn Courtney v. Carr Cousins V. Brasliear Covert V. Nelson Cowan V. Lowry Coward v. Diilinger Cowles V. Coe Cowpertliwaite v. Sheffield Cox V. Miluer V. Reinhardt V. Robinson V. Thomas Crabb v. Jones Section 187 557 37 a 187 a, 235 119 575, 708 697 85, 69G 523 611 234 33 158, 170, 175, 738 85 620, 624 Craddock v. Goodwin 176 Crain v. Gould 517, 633, 682 a, 687 251, 505, 506 Crane v. Freese V. Lewis Cranz v. White Crary v. Barber Cravens v. Wilson Crawford v. Clute V. Foster V. Roberts V. Slade Crayne v. Wells Crayton v. Clark Creagh v. Delane Creaser v. Young Creps V. Baird Cresswell v. Burt Cribben v. Schiliinger Crisman v. Matthews V. Swisher Crizer v. Gorrin Crocker v. Pierce V. Radcliffe Cronin v. Foster Crosby v. Allyn V. Hetherington Cross V. Brown V. Haldeman V. McMaken V. Phelps r. Richardson Grossman v. Crossman Crouch V. Crouch Crowell V. Johnson Crowuiushield v. Strobel Crownover v. Bamburg Croxall V. Hutchings Crozier ii. Shants Cruett V. Jenkins Cruyt V. Phillips Cucullu V. Union Ins. Co Culbertson v. Cabeen 19 246 112 222 701, 705 336 98 701, 705 103 a 576, 607, 608, 717 111 10, 106 89 a 292 95 339 205 205 222 223 234 221, 222,' 255^ 422 474 236, 237, 241 473 370, 373, 385, 395 576 107 185, 185 a 19, 96 644, 651, 655 113 448 221, 231, 255 496, 526 57, 108 607 588 319 545 a 101 a, 733 Section Culver V. Parish 589 V. Rumsey 222, 256, 291 Cummings v. Garvin 499 Cummins v. Gray 333 Cunningham, In re 511 Curiae v. Packard 314 a Curie V. St. Louis P. L Co. 614 Curling v. Hyde 497 Curry v. Glass 225 V. Woodward 451 c. 565 a Curtis V. Alvord 545 V. Norris 517, 533 V. Raymond 539 V. Settle 107 V. Ward 185 c Cushing V. Laird 654 Cushman v. Haynes 525 Custer V. White 619 Cutler V. Baker 711 Cutter V. Perkins 552 630 a Cutters V. Baker 517 D. Daily v. Jordan Dakin v. Hudson Daley v. Cunningham Dame v. Fales Damon v. Bryant Danaher v. Prentiss Dandridge v. Stevens Danforth v. Carter V. Penny V. Rupert Daniel v. Rawlings Daniels v. Clark V. Meinhard V. Willard Danielson v. Andrews D'Arcy v. Ketchum Davenport v. Lacon V. Swan V. Tilton Davidson v. Clayland V. Cowan V. Donovan i>. Kuhn r. Owens Davis V. Carson V. Commonwealth V. Connelly V. Davis V. Drew V. Edwards ■ V. Eppinger V. Garret V. Ham 667 85 509, 626 187 b 185 a 630 a, 658 e 107 33, 136, 428 478 428 589 452 470 605 284 5 224 480, 667 422, 425 251, 508 219 470 251 27 604 162 85, 87 a 263, 498, 669 502 101 a, 108 275 244 551, 552 XXVI INDEX TO CASES CITED. Davis V. Knapp V. ]Mahany V. Marshall V. Miller V. Oakford V. Pawlette V. Stone V. Taylor V. Wilson Dawkins v. Gault Section 653 506 115 344, 353, 372, 373 650 583, 588, 659 200 527 517 a 654 Dawson v. Holcombe V. Jones V. JNIoons Day V. Bach V. Bennett 251, 505 717 216 114 402 V. Newark I. R. Man. Co. 80 V. Paupierre 473 V. Zimmerman 588 Deacon v. Oliver 480, 481 Dean v. Bailey 203, 311 V. Nelson 448 a i\ Oppenheimer 94 a Dear v. Brannou 341 Deaver v. Keith 548 DeBlanc v. ^Yebb 636 Debuys v. Yerbey 81 DeCaussey v. Bailey 137 Decker v. Biyaut 100 Decoster v. Livermore 511 Dehler v. Held 342 Delacroix v. Hart 452 Delano v. Kennedy 318 Deloach v. Jones 245 Denegre v. Milne 30 Denham v. Pogue 588 Dennie v. Hart 674 d Denning v. Corwin 85 V. Smith 87 b Dennis v. Twichell 609 Dennison v. Nigh 247 Dennistoun v. N. Y. C. & S. F. Co. 251 Denny v. Ward 287 V. Warren 256, 276 V. Willard 204, 222, 234, 357, 369, 389 Denson v. Sledge 188 Dent V. Smith 173 Denton v. Livingston 2()6 Derr v. Lubey 516 Desha v. Baker 205, 224, 451 b, 696, 712 Despatch Line v. Bellamy IMan. Co. 453, 485, 548 Detroit P. & T. Co. v. Reilly 627 a Deiipree r. Eisenach 106 Devall V. Taylor 101 a DevoU V. Brownell 640 Section Devries v. Buchanan 654 Dew V. Bank of Alabama 696 Dewar v. Spence 214 Dewey v. Field 294, 389, 392 V. Garvey 452, 516 a Dewing v. Weutworth 511 De Wolf V. Babbett 246 V. Dearborn 245 Deyo V. Jennison 193 Dezell V. Odell 379, 392 Dick V. Bailey 292 d Dickenson v. Cowley 101 a Dickerson v. Simms 25 Dickey v. Fox 586, 589 Dickenson v. Benham 75 V. McGraw 166 V. Strong 465, 481 Dickison v. Palmer 508 Dickman v. Williams 245, 246 Dickson v. Morgan 628 Dider v. Courtney 409 Didier v. Galloway 115 Diefendorf v. Oliver 601 Dierolf v. Winterfield 112, 318 Dillenback v. Jerome 349, 367 Dillon V. Watkins 132 Dirlam v. Wenger 715 Divine v. Harvie 516 a Dix V. Cobb 603, 608 Dixon V. Hill 225 Dobbins v. Hyde 528, 706 V. O. & A. Railroad Co. 516 a Dodd V. Brott 607 Dodge V. Griswold 225 Doggett V. St. Louis M. and F. Ins. Co. 663 Dole V. Boutwell 710 Doll V. Cooper 100, 102 Dolsen v. Brown 525 Donham v. Wild 361, 362 Donnell v. Jones 154, 157, 174, 175, 726, 738, 742 a V. Williams 95 Donnelly v. O'Connor 659 Doolittle V. McCullough 185 c Dore V. Dawson 575 Dorman v. Kane 294 Dorr V. Clark 339 V. Gibbon ey 448 a V. Kenshaw 321, 322, 323 Dorsey v. Kyle 65 V. Pierce 216 Dothard v. Sheid 120, 176, 738 Douglas r. Neil 691,697 Dove V. Martin 133, 134 Dow V. Smith 89 b, 136 V. Whitman 437 a Downer v. Brackett 425 INDEX TO CASES CITED. xxvn Downer v. Curtis V. Shaw Downing v. Phillips Doyle V. Gray Drake v. Hager Drane v. McGavock Drayton v. Merritt Dressor v. McCord Drew I'. Alfred Bank V. Dequindre V. Livermore Driggs V. Harrington DriscoU V. Hoyt Drown v. Smith Drummond v. Stewart Dry den v. Adams Dubois V. Dubois Dudley v. Falkner V. Goodrich Duncan v. Berlin V. Ware Dunklee v. Fales Dunlap V. Hunting u.'McFarland Dunlevy v. Schartz ^^ Dunlop V. Paterson F. I. Co. 251, 509 Dunn V. Crocker 319 V. My res 405 Dunnegan v. Byers 557 Dunnenbaum v. Schram 101 Dunning v. Humphi-ey 159, 176, 177 Durant i'. Johnson 263 Durr V. Jackson 174, 730 a, 733, 744 Durrossett's Adm'r v. Hale 440 Dwight V. Bank of ^Michigan 526 Dwiuel V. Stone 552 Dyer v. Flint 106 V. McHenry 687 Dyson v. Baker 185 d, 422 Section 552 5 415 594, 689 a 103 506, 509 388 527 184 a 108, 111, 441 381, 392 335 a 461, 659 394 173 a 517 251, 505 405 6 316 a 611 711 256, 292 a, 357 305 101 E. Eagan v. Luby Ealer v. McAllister Earl V. Spooner Earle v. McVeigh Earthman v. Jones Eastman v. Avery V. Eveleth Easton v. Goodwin V. Malavasi Eaton V. Badger V. Bartscherer V. Wells Ebner v. Bradford Eckert v. McKee Eddy V. Heath's Garnisliees 5, 613 124 181 448 a 5, 87 a 349 305 339 99 85, 449 170 77 a 9 246 548 Section Eddy V. O'Hara 551, (375 Edgerly v. Sanborn 671 Edmonson u. DeKalb County 452, 465 a Edrington v. Allsbrooks 696 Edson V. Sprout * 672 V. Trask 490 Edwards v. Delaplaine 686 V. Flatboat Blacksmith 105 V. Prather 318 V. Toomer 436 V. Turner 162 Egan V. Lumsden 319 Egerton v. Third Municipality 516 Eichelberger v. Mm'doch 487 Ela V. Shepard 185, 208 Eldridge v. Lancy 248, 369 EUicott V. Smith 561, 583, 6o9 Ellington v. Moore 42 Elliott V. Jackson 10, 420 V. Newby ^51 V. Peirsol ^7 a V. Stevens 134 a Ellis y. Goodnow 517, 674 Ellison V. Mounts 420 V. Tallon 98, 408 V. Tuttle 481, 654, 672 Ellsworth V. Moore 119 Elston V. Gillis 575 Emanuel v. Smith 460 Embree v. Hanna 700 Embury v. Conner 8o Emerson v. Fox 231 V. Littlefield 221 V. Partridge 581, 588 V. Smith 244 a V. Upton 217, 219 V. Wallace 454 a Emery v. Lawrence 612 Emmett v. Yeigh 105 Endel v. Leibrock 86 Enders v. Richards 74 V. Steamer Henry Clay 112, 144. 414 English V. King 454 a V. Wall _ 91 Enos V. Brown 351, 353 V. Tuttle 589, 599, 655 Ensworth v. King 221, 239 Erie v. Kuapp 516 Erskine v. Saugston 654 V. Staley 224, 453, 455 Erwin v. Com. & R. R. Bank 165, * 588 V. Heath 5, 460, 697 Esdon V. Colburn 246 Espey V. Heidenheimer 95, 104 Estabrook v. Earle 490 XXVUl INDEX TO CASES CITED. Section Estill V. Goodloe 583, 659 Evaus V. King 112, 144, 3ol, 414 V. Matlock 700 V. Mohn 658 e V. Saul 56 V. Tucker 96 a, 103 Evarts v. Georgia 185 d Eveleth v. Little 219 Everdell r. Sheboygan, &c. R. R. Co. 465 a Everett v. Herriu 485 Excelsior Fork Co. v. Lukens 405 Eyenuau v. Krieckhaus 458 EzeUe v. Simpson 205 F. Fairbanks v. Stanley 283, 286 Fairchild v. Lampson 572 Fairfield r. Bakhviu 276, 282, 285 V. Madison Man. Co. 112 V. Paine 212, 218, 219, 220, 236 a, 265 Falconer v. Freeman 225 Falls V. AVeissiuger 341 Fanning v. First Nat. Bank 480 Farley v. Farior 105 Farmer v. Simpson 708 Farmers' Bank v. Beaston 251, 506, 509, 511 V. Day 231 V. Gettinger 91, 687 Farmers & Mechanics' Bank v. Little 424 Farmers & Mechanics' Nat. Bank V. King 491 a Farmers & Merchants' Bank v. Franklin Bank 685 Farnham r. Cram 393, 395 V. Gilman 361 Farrington v. Edgerly 292 a Farrow v. Barker 63 V. Hayes 91 Farwell v. Howard 461 Faulkner, Tn re 87, 100 V. Waters 551 Faulks V. Heard 658 a FauU V. Alaska G. & S. M. Co. 545 a Faxon v. Mansfield 680 n Fay V. Sears 578, 639, 659 V. Smith 558 Featherston v. Compton 692, 696 Feazle v. Simpson ^ 729 Feild V. Dortch 437, 448 Felch V. Eau Pleine L. Co. 487 Felker v. Emerson 311, 426 Fellows c. Brown 10 Fellows V. Dickens V. Duncan V. Miller Felton V. Wadsworth Fenton v. Block Ferguson v. Smith Ferris v. Carlton V. Fei-ris Fessenden v. Hill Fettyplace v. Dutch Field V. Adreon V. Crawford V. Jones V. Livermore V. Milburn V. Watkins Fife V. Clarke Fifield V. Wood V. W^ooster Firebaugh v. Hall t: Stone First V. Miller Section 141 545 139 285 '458 95 98, 401 10 111 222, 292 e 48, 59 a 487 509 a 74 230 631, 686 317 658 e 290 85 672 251, 505 First Baptist Church v. Hyde 682 b First National Bank v. Gaudy 491 V. Perry 539 V. Davenport & St. P. R. R. Co. 465 a V. P. & O. R. Co. 489, 509 a V. AVeckler 420 Fish V. Field 548 Fisher v. Bartlett 388, 389 V. Consequa 14, 415 t'. Taylor 418 V. Vose 425 Fisk V. Herrick 568 V. Spring 300 V. Weston 530 Fitch, Matter of 99 c. Rogers 290 V. Ross 317, 422 V. Waite 42, 48, 221, 481 Fitchett t'. Dolbee 497, 499 Fithian v. Brooks 659 V. N. Y. & E. R. R. Co. 478, 624 Fitzgerald, Matter of 49, 60 V. Blake 190 V. Caldwell 665, 700, 701, 704 V. Hollingsworth 458 Fitzhugh V. liellen 237 Fitzsinnnons v. Marks 5 Flake v. Day 93 Flanagan v. Gilchrist 167 V. W^ood 292 a, 292 b Flandrow, In re 626 Flannagan v. Donaldson 74, 77 b Flash V. Paul 696, 697 Fleitas v. Cockrem 141 Fleming v. Bailey 178 INDEX TO CASES CITED. XXIX Section Fleming v. Burge 1^4 Fletcher v. Fletcher 4^1 Flournoy v. Lyon 173 6, 176, 7dU o D. Co. Flower r. Griffith V. Parker Floyd V. Blake V. Hamilton Folschow V. Werner Folsom V. Haskell Forau v. Johnson Force v. Gower Ford V. Babcock V. Detroit D V. Dyer V. Hard V. Wilson V. Woodward Forepaugh v. Appold Forsyth v. Warren Fortman v. Rottier Fortune v. State Bank V. St. Louis Foss V. Stewart Foster v. Dryfus V. Dudley V. Glazeuer V. Hall V. Higginbotham V. Illiuski t'. Jones V. Potter V. Sinkler 74.5 9.5 709 10 157, 175 246 488 104 a 5 85 566 196 116, 696, 711 439 90, 116, 696 604 444, 449 a 729, 732 583, 659 516 195 400 548, 618, 620 85 58 89 h 111 620, 697, 706 244 578 740 .576, .579, 583, 607, 659 576, .579, 607, 717 425 009 Free v. Hukill Freeborn v. Glazer Freeman v. Creech V. Grist V. Howe V. Miller V. Thompson Section 1U7 415, 420 282 263 251 4.51 6, 658 e 437 a, 440, 440, 448 Freidenrich v. Moore 658 e Frellson v. Green 224 French v. Rogers 572 V. Stanley 202, 204, 257, 294, ^ 310 Frere v. Perret Fretwell v. Laffoon Fridenburg v. Pierson Friedlander v. Myers V. Pollock 291 212 388 89 h 496 V. Sweeney V. Walker V. White Foster's Case Foulks V. Pegg Fowble V. AValker Fowler v. Bishop V. Jenkins V. McClelland V. Pittsburgh, F. W., & C. R. R. Co. 465 a V. Williamson 607 Fowles V. Pindar 378 Fox V. Hoyt * 89 h V. Reed 688 a Foyles v. Kelso 437 a Frankel v. Stern 124, 178 Franklin v. Claflin 107 V. Ward 622 Franklin Bank v. Batchelder 425 V. Small 344 Franklin Fire Ins. Co. v. West 224, Frary v. Dakin Frazier v. Willcox 549, 669, 671 85 223, 697 Frost V. Brisbin V. Cook V. Kellogg V. Mott V. Patrick V. White Frothingham v. Haley Fuller V. Bryan V. Holden V. Jewett V. O'Brien FuUerton v. Mack Fulton, The Robert V. Heaton Fulweiler v. Hughes Funkhouser v. How G. Gable v. Brooks Gaddis v. Lord Gaffney v. Bradford Gage V. Chesebro Gager v. Watson Gaines v. Beirne Gaither v. Ballew Galbraith v. Davis Gale V. Ward Galena & C. U. R. R. zies Gallagher v. Cogswell Gallego V. Gallego Galloway, Matter of Gallup V. Josselyn Gardner v. Hust Garitv v. Gigie Garland v. Harrington Garmon v. Barringer Garner v. Burleson 107 633 262, 273 104 71 65 1.32 248, 388 225 659 323 551 39 294, 389 481 550 200 251 185 557, 615 586, 589, 706 132 173, 744 588 689 a 623 460 509 246 256 Co. V. Men- 604 141 701 82 254 194 261, 265, 675 611, 612 112, 144, 414 101a XXX INDEX TO CASES CITED. Section Garner v. White 98 Garnet v. Wimp ^ 185 Garretson v. Zacharie 170 Garrett v. Tinnen 312 Garrott v. Jaffray 529 Gary v. McCown 208 Gasherie v. Apple 75 Gasquet v. Johnson 246 Gass V. Williams 331, 341 h Gassett v. Grout 502 Gates V. Bushnell 221 V. Flint 25G V. Gates 291 V. Kerby 70G Gay V. Caldwell 216, 218 V. Southworth 244 a Gee V. Alabama L. I. & T. Co. 420 V. Gumming 678 i\ Warwick 451 a, 645, 678 Geer ;.•. Chapel 545 Genin v. Tompkins 400 Georgia Ins. & Tr. Co. v. Oliver 665 Gerrish i'. Sweetser 610 Gery v. Ehrgood 480 Getchell v. Chase 463, 548, 674 d Gibbons v. Brassier 87 a Gibbs V. Chase 198, 291 Gibson v. Cook 611 V. Jenney 195 V. McLaughlin 44 V. Nat. Park Bk. 611 V. Wilson 205 Giddings v. Coleman 523, 639, 656 Gies V. Bechtner 549 Gilbert v. Crandall 349, 362 V. Ilollinger 193 Gildersleeve v. Caraway 713 Gile i\ Devens 1 93 Gilkeson v. Knight 87 a, 93 a, 93 b Gill V. Downs 414, 420 Gillaspie v. Clark 312 Gilman v. Ilill 199 V. Stetson 219 Gilmer v. Wier 183 Gilmore v. McNeil 373, 376, 386 Ginsberg v. Pohl 196 &, 265 Girard Fire Ins. Co. v. Field 549, 669 Givens v. Merchants' Nat. Bk. 11 Glanton v. Griggs 721 Glassell o. Thomas 681 Gleason i'. Briggs 311 V. Gage 673 Glen Iron Works, fn re 545 a Glenn v. B. & S. Glass Co. 484, 671 V. Gill 509 a Goble V. Howard 27 Godbold V. Bass 247, 502 Goddard v. Cunningham 133, 415 Goddard v. Hapgood V. Perkins Godden v. Pierson Godding v. Pierce Godfrey v. Macomber Goebel v. Stevenson Section 453, 537 222 457 4 a, 454 594 322 &, 339 Gold V. Housatonic Railroad Co. 478 Goldsmith v. Picard 743, 745 V. Stetson 184 Goll V. Hinton 244, 248 Goode V. Holcombe 658 g V. Longmire 246, 255 a Goodell V. Fairbrother 246 Goodman v. Allen 338 Goodrich v. Church 268 Goore v. McDaniel 224, 229 Gordon v. Coolidge 658, 659 V. Gaffey 10 V. Jenney 256, 291, 292 c, 371 V. Johnston 331 Gore V. Clisby 465, 481 Gorman v. Swaggerty 452 Goss V. Board of Com'rs 77 c, 90 V. Gowing 54, 102 Gottfried v. Miller 244 Gouch V. Tolman 652 Gould V. Meyer 658 a, 695 V. Newburyport R. Co. 489, 509 a Gove V. Varrall 669 Gover v. Barnes 403 Gowan v. Hanson 33 Gower v. Stevens 292 a, 292 6 Grace v. TNIaxfield 545 Gracey v. Coates 662 Graighle v. Notnagle 253 Graham v. Bradbury 11, 111, 409 V. Burckhalter 141 V. Moore 548 V. Ruff 107 V. Spencer 112 Grand Gulf R. R. & B. Co. v. Conger 131 Granite Bank v. Treat 85 Granite Nat. Bank v. Neal 489, 491 a Grant v. Deuel 158 V. Shaw 483, 517, 533, 551 Graves v. Cole • 113 V. Cooper 058 b V. Strozier 27 V. Walker 656 Gray v. Badgett 684 V. Bi-iscoe 11 V. Ilenby 624 V. INIacLean 339 I!. JNIcNeal 85 V. Perkins 331 Grayson v. Veeche 543 Green v. Doughty 599 INDEX TO CASES CITED. XXXI Green v. F. & C Bank V. Gillett V. Haskell V. Lanier V. Nelson V. Shaver Greene v. Beckwith V. Pyne V. Tripp Greenleaf v. Mumford V. Perrin Greentree v. Rosenstock Greenvault v. F. & M. Bank Greenwood v. Rector • Greer v Powell V. Rowley Gregg V. Nilson V. Thompson Gregory v. Higgins Greiner v. Prendergast Gridley v. Harradeu Griel i. Loftin Griffith V. Robinson (irigg V. Banks Grignon v. Astor Grigsley v. Love Grissom v. Reynolds Griswold, In re V. Plumb V. Sharpe Groat V. Gillespie Groome v. Lewis Grosvener v. F. & M V. Gold Grove v. Harvey Grover v. Buck Guay V. Andrews Guier v. O'Daniel Guild V. Holbrook Guile V. McjSTanny Guilhon v. Lindo Gunn V. Howell 581, 604 85 341 c 688 422 60, 67 66, 208 106, 696 225, 231 463, 541 717 113 619 588 470, 516 451 a 448 585, 588 10 618 452 120 224, 239 85, 86 221 711 262, 273 378 10, 420 177 509 a 481 222 134 103 339 62 481, 551 101a 34 658 a, 694, 697, 706, 710, 711 Gutman v. Virginia Iron Co. 103 Section I 474 I Haggerty v. Ward Hagood t'. Hunter Haight V. Bergh Hair v. Lowe Haizlette v. Lake Halbert v. McCulloch V. Stinson Haldeman v. H. & C. R. Bank 'H. Haber v. Nassitts Hacker v. Stevens Hackettstown Bank v Hadley v. Bryars V. Peabody Haffey v. Miller Hafley v. Patterson Hagan v. Lucas Hagedon v. Bank of "Wisconsin Haggart v. Morgan 70 a 453 Mitchell 65 a 37 a, 244 a 667 667 107 251, 267 509 a 65 Hale V. Chandler V. Cummings V. Duncan V. Huntley Haley v. Reid Halfpenny v. Bell Hall V. Brazelton V. Howd V. Magee V. Page V. Stephens V. Stryker V. Waterbury V. Walbridge I'. Williams Halley v. Jackson Halpin v. Barringer Halsey v. Whitney Hamilton v. Bryant V. Knight V. Penney Hammett v. Morris Hanauer v. Casey Hancock v. Colyer V. Henderson Handly v. Pfister Handy v. Brong V. Dobbin Hanmer v. Wilsey Hanna v. Bry V. Lauring V. Loring Hannah v. Moberly Bank Hannahs v. Felt Hanness v. Smith Hannibal & St. J. R. Crane Hansen v. Butler Hansford v. Perrin Hanson v. Davis V. Dow Harbison v. McCartney Hardaway v. Semmes Hardesty v. Campbell Hardin v. Lee Harding v. Harding Hardy v. Colby V. Hunt V. Tilton Section 449 101a 81 658 e 75 a 339 624 R. Co. 221, 222, 223, 527 227, 275 228 251, 294 250 244 170 6 113 85 541, 545, 594 539 221 •99, 225 185 & 262, 291 87 a, 454 b 87 489 244 323 6 110 95 459 221 481, 551, 667 236 223 10 244 185 c 509, 626 697 10 545 a 221, 224 311 R. Co. V. 478, 662, 710 502 335, 338 572 184 a 229, 267 229 403 448 275 609 630 251 XXXll INDEX TO CASES CITED. Section Hardy v. Trabiie lUl a Hargadiue v. Van Horn 88 Harley c Charleston S. P. Co. 80 Harlow o. Becktle 445 Harmon ;;. Birchard 696, 711, 715 V. Moore 252 a, 381,388 Harney v. Ellis 583, 659 Harper v. Bell 317 V. Keys 170 V. Miller 212 Harral v. Gray 234 Harrell v. Whitman 457, 541, 545, 547 Harriman v. Gray 297 Harrington v. People 85, 87 6, 89 h Harris v. Aiken 638 V. Dennie 251 V. Fmberg 176 V. Grodner 440 V. Hanson 196 V. Miller 457 V. Phoenix Ins. Co. 458, 517 V. S. &K. R. R. Co. 674/; V. Taylor 325, 405 Harrison v. King 98 V. Pender 274 V. Renfro 422 V. Trader 224, 428 Harrod v. Burgess 27 a Harrow v. Lyon 413, 429 Harshaw v. Taylor 85 Hart V. Anthony 474 V. Dahlgreen 657 V. Kanady 124 Hartford r. Jackson 245 Hartford Quarry Co. v. Pendleton 316 a Hartshorne r. Henderson 496 Hartle v. Long 498 Hartley v. Tapley 612 Harvey ?'. Grymes 224 r."" Tyler 85, 87 a Haselton v. Monroe 700 Haskell v. Haskell 490 Hassie v. G. I. W. U. Congrega- tion 457, 545 Hatch V. Bayley . 245 a V. Lincoln 245 a Hathaway v. Davis 27, 418 V. Larrabee 237 • V. Russell 561, 563, 684, 688 Hatry v. Shuman 406, 409 Haughton v. Eustis 425 Haust V. Burgess 454 h Haven v. Low 245, .539 V. Snow 218. 220 V. Wentworth 463, 541 Havisp. Tavlor 52, 741, 742 Section Havis V. Trapp 404 Hawes v. Langton 639, 649, 652 V. Waltham 568, 572 Hawkins v. Albright 406 V. Georgia Nat. Bank 704 a Hawley v. Atherton 56L V. Del mas 101 a Hawthorn v. St. Louis 516 V. Unthank 537 «, 539 Ilayden v. Sample 159, 176, 739 Hayes u. Joseph! 323 a Ilayman v. Hallam 342 Haynes, Ex parte 87, 99, 100, 106 V. Gates 604, 691 V. Powell 101 V. Small 204, 208 V. Tenney 377 a Hays V. Anderson 176 V. Gorby 119 V. Lycoming F. I. Co. 545 a Hayward ?•. Clark 246 Haywood v. Collins 85, 437 a, 448 V. Hardie 196 c V. McCrory 96, 437 a V. Russel 440, 443 a Hazard v. Agricultural Bank 79 V. Franklin 667 V. Jordan 17, 26 Hazelrigg v. Donaldson 323 Hazeltine v. Page 595 Hazen v. Emerson 648, 678 Head v. Merrill 472 Heard v. Fairbanks 249, 258 Hearn v. Crutcher 490, 508 V Foster 525 Hearne v. Keath 28 Heath v. Lent 176, 179 Hebel v. Amazon Ins. Co. 451 b Ileffernan v. Grymes 697 Heidenbach v. Schland 61 Helme v. Pollard 653 Hemmenway v. Pratt 548 V. Wheeler 256, 258 292 e Henderson v. Drace 147 V. Henderson 81 V. Thornton 30, 275 Ilennessy v. Farrell 667 Ilenrie v. Sweasey 95,449 a Henry r. G. P. M. Co. 625 V. Mitchell 237 V. Murphy 458 Ilensley v. ^lorgan 422 Hepp V. Glover 245 Herbert v. Bronson 613 Ilergman v. Dettlebach 249 Ilerndon v. Forney 166 Hernstein r. Mattliew.son 10 INDEX TO CASES CITED. XXXlll Herring v. Johnson Hervey v. Champion Hess V. Shorb Hesseltine v. Stockwell Ilewes V. Parknian Hewitt V. Wheeler Heyneman v. Dannenburg Hibbard v. Clark Hibbs V. Blair Hicks t'. Chapman Section 662 224 498 199 195 546 225 684 rt 150 502 V. Gleason Higgins V. Mansfield V. AVhitney Hill V. Beach V. Bond V. Chatfield V. Child V. Cunninirham 453, 542, 701 175, 176 185 c 508 415 10 263 212, 213, 215, 415 V. Harding 112, 317, 318, 425 V. Hunnewell 288 V. Kroft 588 V. La Crosse & M. Railroad Co. 506 V. Merle 323 V. Rushing 157, 167, 168 V. Wiggin 381, 388 Hiller v. Lamkin 88 a Hilton V. Ross 331 Hinckley v. Bridgham 377 a V. Williams 454 b, 487 Hines v. Chambers 185 a V. Kimball 53 Hinkle v. Currin 673, 678 Hinsdill v. Safford 588 Hirth V. Pfeifle 561 Hisler v. Carr 124 Hitchcock I'. Egerton 481 V. Lancto 689 a V. Watson 659, 663 Hitt V. Lacy 620, 702, 706 Hoag V. Hoag 543 Hoar V. Marshall 501 Hobson V. EmxDoriura R. E. & INI. Co. 449 a Hockaday v. Sallee 247 Hodges V. Graham 451 b, 697 Hodskin v. Cox 373 Hodson V. McConnell 604 Hoffman v. Fitzwilliam 451 « V. Simon 658 g Hoge V. Norton 170 Holbrook v. Baker 245, 539 V. Hyde 199 V. Waters 247, 501 Holcomb V. Foxworth 166 Holland v. Adair 448 HoUiday v. Cohen 175, 178 Section Holliday v. Sterling 732 a Hollingshead, In re 96 Hollister v. Goodale 256 Ilolloway V. Briidfley 34 Holly r.'Huggeford 246 Holman v. Fisher 422, 498 Holmes v. Barclay 10 V. Remsen 700 Holston ]\Ian. Co. v. Lea 95 Holt r. Alloway 87 a V. Burbank 291, 370, 379 Holton V. S. P. R. R. Co. 653 Holyoke v. Adams 323 b Holzman v. Martinez 183 &, 414 Homan v. Brinckerhoif 125 Home Mutual Ins. Co. v. Gamble 674 a, 676, 711 Hooper v. Hills Hooton V. Gamage Hoover v. Gibson Hopkins v. Nichols V. Ray V. Suttles Hopkirk v. Bridges Hopple V. Higbee 523 672 a 27 101 a, 102 481 108 Hopson V. Dinan Horn V. Bayard V. Cole Home V. Mitchell Horner v. Doe V. Harrison Horton v. Grant Hoshaw V. Gullett V. Hoshaw Hoskins v. Johnson Hotchkiss V. McVickar Houghton V. Ault Housemans v. Heilbron Houston V. Belcher V. Nowland V. Walcott V. Wolcott Hovey v. Crane V. Wait How V. Field Howard v. Card V. Clark V. Crawford V. Daniels V. Farr V, Oppenheimer V. Smith V. Whittemore V. Williams Howe V. Ould Howe V. Starkweather V. Stewart Howell V. Freeman 185 c 667 158, 175, 180 253 6 118, 121 b 85 168 714 332 171 561 291 67 460 116, 124, 127 605 697, 711 630 a 650 218, 219 465 539 263 a 673 237 244 a 120 874 363 195 588 244 244 c 620 XXXIV INDEX TO CASES CITED. Section Howell V. Kingsbury Ul Howes V. Spicer 190, 381 Howliuul !'. Spencer 481 Hoy r. Brown 25 V. Eaton 2G9 Hoyt r. Cluistie 498 " r. Kobiiisou 561 r. Swift 457, 4C3, 541, 547 Hubbard v. Williams 588 Hulibanlston L. Co. v. Covert 90 b llubbell V. Root Huclieson v. Ross Hudson V. Daily V. Hunt Huff r. Ilutcliinsou V. Mills Hugs t'. Booth Hughes V. Brooks V. Kelly V. Lapice V. INIartin V. Rlonty r Stinnett Hull V. Blake Humphrt'y r. Barns V. Wdnou Humphreys i\ Cobb r. jNIatthews Hunt V. Coon V. Field r. Gilmore V. Johnson V. Noriis V. Stevens V. Strew V. AVicldiffe Hunter v. Case V. Ladd V. Peaks Huntington i-. Dlaisdell ('. Risdon Huntley v. Stone Huntress r. Burbank llu..t r. Elv llurd, Mat'ter of V. Barnhart r. .farvis llurlburt r. Hicks lliiilliut r. Serley Iln-liands r. Jones llussey V. Thornton Hutchins r. Browu V. Evans r. Hawley r. S|>raguo V. Watts Hutcliinson v. Eddy r. Lamb 297 a 115, 12;3 420 539, 5G1 112, 313 b. 318 589, G20 547, 548 158, 170 24(i 210 103 074 a 103 708 715 03r) 305, 373, 374 31 461, 65!) 225 170 ft 5 12, 19 251, 509 106, 221 442 405 118 373, 381, 395 256, 291 594 487, 514 704 485 81 179 ft 09 500 05 229 211! 210 588 463, 541, 578 523 614 715 10 Hutchinson v. Parkhurst Hyde ;;. lliggins Hynson v. Taylor Section 372 19 10 Ida V. Harwood Iglehart v. Moore Illinois C. R. R. Co. v. V. Weaver Ilsley ('. Nichols Ingalls !'. Baker V. Dennett Ingraluun i'. Phillips Inman r. Alljiort V. Strattan Inslee i\ Lane Insurance Co. of Penn. Ins. Co. Irisli i\ Wright Irvin V. Howard 90, Irvine c. Lumbermen's V. Scobee Irwin V. P. & C. R. R. Isaacks v. lulwards Isham V. Downer V. Ketchuni Ives r. Bartholomew V. Hamlin r. A'anscoyoc Ivy ('. Barnhartt J. Cobb 244 rf 588 518 454 200 a 244 c 686 425 86, 112 323 245 V. Phffinix 604 10 101, 102, 147, 323 700 216 665 405 233 273 733 381 547 729 Bank Co. 202, 732, Jackson i'. Bank U. S. 491 V. Burke 108, 108 a )'. Ilolloway 430 r. Perry 67 V. Shepard 87 ft r. Shlpman 658 a, 682 V. Stanley 133, 135, 148, 415 V. Walsworth 81 V. Warwick 141 Jackson's Ex'r c. Lloyd 605 Jacobs r. Ilogan 262, 275 V. Remsen 225 Jacoby v. Gogell 14, 104 Ja'ger r. Stacking 341 a James r. Dowell 415 «'. Fellowes 678 Jameson v. Paddock 375, 388 V. Ware 373 Janney r. Spedden 5 Jaquctt V. Palmer 508 Jasj)er ('(uinty r. Chcnault 148 INDEX TO CASES CITED. XXXV Section Section Jeffevy v. Wooley 25 Jones V. Norris 481 Jeffries V. Harvie 205 V. O'Donnell 399 Jenks V. Osceola Township 516 V. Peasley 331 Jeuney v. Delesdernier 361 V. Pope 112 V. Rodman 381 V. Reed 85 Jennings v. Joiner 166 a V. Tracy 682 V. Summers 550 V. Webster 95 Jewel V. Howe 101 a V. Winchester 474 Jewett V. Bacon 560, e 74 e, 680 V. AV'ood 701 V. Dockray 347 Jordan, The Oliver 251 V. Torrey 381 V. Gallup 291, 294 Johann v. Rufener 674 a V. Hazard 36, 414 Johns V. Church 197, 391, 392 V. Jordan 674 a V. Field 717 Judah V. Duncan 414 Johnson v. Buell 112, 144, 414 V. Judd 603 V. Carry 674 a V. Stephenson 5 V. Day 214, 216, 220 Judson V. Lewis 196 V. Delbridge 662 Junction R. R. Co. v. Cleneay 575, V. Edson 228, 362, 413 588 V. Farmers' Bank 176 V. Fleetwood 247 K. V. Gage 448 V. Gorhana 453 Kahn v. Herman 130 V. Griffith 455 Kaiser v. Richardson 341 b V. Hale 102 Kaley v. Abbot 602 V. Hersey 570 Kane v. Clough 612 V. Howard 684 a V. McCown 448, 448 b V. Johnson 5 V. Pilcher 331 V. King 567, 570 Kanouse v. Dormedy 320 V. Laughlin 74 Kapp V. Teel 588 V. McCutchings 658 q Karnes v. Pritchard 461 V. Moss 207 Katz V. Sorsby 549, 553 V. Pace 612 Kearney v. Nixon 640 V. Sharp 245 a Keel V. Ogden 633, 6.55 V. Short 34 Keep V. Sanderson 654 V. Thayer 610 Kegel V. Schrenkheisen 101 a V. Weatherwax 327 a Keith V. Harris 624 Joiner v. Perkins 95 V. Stetter 101 Jones V. Anderson 136 Kelley v. Weymouth 654 V. J<^tna Ins. Co. 489 Kellogg V. Freeman 460 V. Bank of N. Liberties 491a V. Miller 115 V. Bradner 246 V. Waite 246 V. Buzzard 20 Kelly V. Archer 115, 124 V. Byrd 414 V. Babcock 487 V. Crews 550 V. Beauchamp 174 V. Gilbert 392, 394 V. Bowman 634, 639, 649, 656 V. Gorham 511 V. Deming 245 V. Holland 33 a V. Dexter ' 351, 853, 383 V. Howell 659 V. Donnelly 95 V. Huntington 454 V. Gilman 187 6 V. Jones 251, 331, 506 V. Lane 225 V. Kirksey 744 V. Roberts 487, 525 V. Lake 185 a Kelso V. Blackburn 87 6 V. Leake 106 Kempe's Lessee v. Kenn edy 87 a V. Man. Nat. Bank 665 Kendall v. Brown 317, 318 V. I\L & A. Railroad Co. 339 V. Morse 292 V. N. Y. cSc E. R. R. Co. 452, 478, Kennedy v. Aldridge 514 625 V. Baillie 62 XXX VI INDEX TO CASES CITED. Section Kennedy v. Brent 191, 453 V. Dillon 87 V. H. L. & S. Society 470 V. Morrison 103 V. Kaguet 422 Kennon v. Evans 101, 107 V. Ficklin 263 Kergin r. Dawson 539, 653, 654 Kerr v. Mount ^^^^^ V. Reece 170 Kesler v. St. John 599 Ketchuin v. Ketchum 34 Kettle V. Harvey 541, 553 Keyser v. Mitchell 454 b Kibbe v. Wetmore 75 Kidd V. Shepherd 620 Kidder v. Packard 564 Kidderlin v. Myer 452 Kietfer v. Ehler 587, 588, 589, 591 Kiff V. Old Colony, &c. R. R. Co. 195, 244 c Kilburn v. Woodworth 5 Killey v. Scannell 253 a Killsa V. Lermond 706 Kimball v. Donald 611 V. Gay 588 V. Macomber 630 V. Plant 585, 588, 697 V. ^\'ellington 275 Kimbrough v. Davis 607, 717 Kincaid v. Neall 202, 273 King V. Bucks 196 a, 207 V. Harrington 448 V. Montgomery 732 V. Moore 508 V. Murphy 609 V. Vance _ 5, 437, 557, 588, 708 Kingman v. Perkins 611 Kingsland v. Cowman 100 V. Worsham 42 Kingslev v. Missouri Fire Co. 570 Kinney V. Ileald 92 Kinsey v. Wallace 726, 727 Kirk V. .Alorris 331, 332, 333 a, 335 Kirkman v. Hamilton 533 V. Patton 112 Kirksey i-. Bates 207, 327 V. Dubose 185 r. Jones 157, 182, 727, 743 Kitchen v. Reinsky 215 Kittredge v. Emerson 425 V. Sumner 246 V. Wanen 425 Klauber i'. Wright 650 Klemm v. Dewes 414 Klenk v. Schwalm 95, 102 Klinck V. Kelly 222 Kling c. Childs 313 Knabb v. Drake Knap V. Sprague 269, Knapp V. Joy V. Levanway Knerr v. Hoffman Knight V. Bowley V. Gorham V. Nelson Knisely v. Evans Knox V. Protection Ins V. Schepler Kohlsaat, In re Kritzer v. Smith Kruse v. Wilson Kugler V. Shreve Kuhn V. Graves Kyle V. Connelly Section 244 a, 480 292 a, 351, 356 72 636, 642 570 481 523 189 633 . Co. 469, 549, 669 571 511 144, 409 87 a, 91 64 221 136 Labeaume v. Sweeney 343 Lackey v. Seibert 221, 224 Lackland v. Garesche 4 a, 454 h, 458 Ladd V. Gale 494 V. Hill 248 I'. Jacobs 700. 710 V. North 291 Laidlaw v. ISforrow 711 Laighton v. Lord 285, 381 Lake Shore & M. S. R. Co. v Hunt 470 Lamb v. Belden 228 V. Day 203 V. Franklin Man Co, 653 V. Stone 458, 640 Lambard v. Pike 237 Lambden v. Bowie 403 Lambert r. Craig 278 Lambeth v. Turnbull 245 Lambreth v. Clarke 470 Lamkin v. Phillips 528, 60^ \, 607, 630, 717 95 Lampkin v. Douglass Lamprey v. Leavitt 381 Landry v. Chayret 674 a Lane v. Fellows 108 V. Felt 461, 481 V. Jackson 256 V. Nowell 482 Lang i\ Waring 89 a Langdon v. Conklin 418 V. Lockett 509 a Langley v. Berry 601 Lannaii r. Smith 612 Large v. Moore 607, 607 a Larimer v. Kelley 67, 222 Larkiu v. Wilson 478 INDEX TO CASES CITED. XXXVU Larrabe v. Knight Lasere v. Rochereau Lash us V. Matthews Lasley v. Sisloff Lathrop v. Blake V. Cook V. Snyder Lawlin v. Clay Lawrence v. Bank V. Burnham V. Featherston V. Hagerman V. Jones V. Lane V. Rice ». Smith V. Yeatman Lawton v. Kiel Lawver v. Langhans Layman v. Beam Lea V. Maxwell V. Vail Leach v. Cook V. Thomas Learned v. Bryant V. Vandenbm-gh Lecesne v. Cottin Lee V. Palmer V. Peters V. Stanley V. Tabor Leefe v. Walker Legro V. Staples^ Lehman v. Berdin Leiber v. U. P. R. Co. Leigh V. Smith Leland v. Sabin Lenox v. Rowland Section 717 448 a 185 654 210, 267, 291, 371 389, 391 95 442 225 248 142 175, 72G, 732, 745 400 706 299, 348 474, 476, 658 e 127 27 101, 144, 437 a 215 214 147 53 124 389 221, 256 313 697 107 67 458 548 528 318 597 460, 658 b 602 13, 400 Leonard v. New Bedford Savings Bank V. Speidel V. Stout Lesher v. Getman Leslie v. Merrill Lessing v. Vertrees Levi V. Darling Levy V. Levy V. McDowell V. JVIillman Lewis V. Buck V. Butler V. Dubose V. Dunlop V. Kennedy V. Lyman V. Orpheus V. Paine V. Prenatt Lewis V. SheflSeld V. Smith V. Whittemore Lexington & O. R. R. Applegate Libbey v. Hodgdon Libby'iJ. Cushman V. Murray Lick V. Madden Lieber v. St. Louis A. Assoc' n Lightner v. Steinagel Lincoln v. Beebe V. Tower V. White Lindau v. Arnold Lindell v. Benton Lindner i'. Aaron Lindsay v. Lamed Lindsley v. Malone Little V. Hale V. Owen V. Sinnett Littlefield v. Hodge V. Smith Littlejohn v. Wilcox Littleton v. Frank Littleton National Bank v O. Railroad Livengood v. Shaw Livermore v. Rhodes Livingston v. Smith Lock V. Johnson Locke V. Tippets Locket V. Child Lockett V. Neufville Lockhart v. Johnson V. Woods Lodge V. Lodge 711 Loftln V. Shackleford 325 Lomerson v. Hoffman 60 V. Huffman 244 d Long v. Ryan 674 I Loomis v. Green 496, 546 I Lord v. Allen 120 V. Gaddis 34, 95 Loring v. Folger 426 ' Lorman v. Phoenix Ins. Co. 33, 108 1 Lorrain v. Higgins 251 Loubat i'. Kipp 108, 115 Louderman o. Wilson 545 Love i;. Fairfield 576 V. Harper 77 V. Kidwell 246 V. Voorhies 258 V. Young 570 Lovejoy v. Albree 629 a V. Hartford F. 1 Section 661 541, 516 199 Co. V. 114 79 35 257 260 a & M. 620 506, 508 324 5 235 697 424 133, 415 732 406, 420 588 665 89 b 588 609 158, 176 176 P. & 405 a 103, 409 75 185, 253, 426 480, 030 620, 674 a 566 134 c 658 b 173, 742 a, 713 279 689 697, 711 461, 548, 659 62 199 422 418 423, 711 659 100 221, 422 550 126 263 167, 169 317, 322 a 108 474, 696 549 Co XXXVlll INDEX TO CASES CITED. Lovejoy v. Hutcbins V. Lee Lovelady v. Harkins Lovell V. Sabiu Lovely v. Caldwell Lovier v. Gilpiu Low V. Dunham Lowe V. Derrick Section 295, 297, 3U9 481, 506, 508 416 297, 299 6U 185, 397, 405, 729 373 147 Lowenstein v. Monroe Lowry v. Cady V. Clements V. Lumbermen's Bank V. Stevens 175, 178 381 400 708 388 V. Stowe V. Walker Loyless v. Hodges Lucas V. Campbell V. Godwin Lucky V. Miller Ludden v. Leavitt 91, 112, 127, 147, 415 291, 371 451 a, 453 6G2 207 126 291, 349, 351, 367, 371 581, 588 103, 448 a 611 229 517, 541, 545 481, 544 Ludlow V. Bingham V. Ramsey Luff V. Pope Lumniis v. Boon Lundie v. Bradford Lupton V. Cutter Luton V. Hoehn 625 Lyford v. Demerritt 700 a Lyle V. Barker 245, 539 V. Foreman 62 Lyman v. Burlington 185 d V. Cartwright 706 V. Dow 266 V. Lyman 381 V. Orr 665 V. Parker 643 V. Wood 543 Lynch v. Crary 221, 224 a V. Hartford F. I. Co. 701 Lynd v. Picket 195 Lyndon v. Gorham 568 Lyon V. Blakesly 95 r. Rood 256 V. Sanford 224, 239 V. Yates 185 c Lyons v. Mason 69 Lytle V. Lytle 275 Mc. McAllister v. Brooks 578, 708, 710, 718 478 244 ffl V. Penn. Ins. Co. McBrayer v. Dillard McBride v. Farmers' Bank 222 V. Floyd 224, 262, 273 McBurnie v. Overstreet McCaffrey v. Moore McCarn v. Rivers McCarthy's Appeal INIcCartney v. Branch Bank Section 255 a 620 285 244 a 91 McCarty v. Emlen 570, 620, 702 V. Steam Propeller, &c. 551, 708 McClanahan v. Brack 111, 123, 416 McClellan v. Lipscomb 224, 239 V. Young 516 McClerkin v. Sutton 11 McCluny v. Jackson 275 :McCobb V. Tyler 221 McCoid V. Beatty 607 McCollem v. White 63, 101 ]McComb V. Reed 304 McCoombe v. Dunch 81 McCombs V. Allen 323 b iNIcCormack v. Hancock 491 a McCoy V. Williams 517, 683 McCracken v. Covington C. N. Bk. 729 McCraw v. Welch 102 McCreary v. Topper 498 McCulloch V. Foster 87, 108 McCullou2:h V. Grisbobber 732, 736 V. Walton 157, 182 McDaniel v. Hughes 708, 723 McDermott v. Donegan 672 McDonald v. Carney 620 V. Fist 112, 133, 147 V. Forsyth 10 V. Gillett 484 McDougal V. Hennepin County 516 McDowell V. Crook 653 McEachin v. Reid 459 McEvoy V. Lane 653 McFadden v. O'DonneU 701 McFarland v. Farmer 246 McGavock v. Bell 87 a McGehee v. Walke 541 McGlinchy v. Winchell 541 a McGraw v. Memphis, & O. R. R. Co. 405 a McGuire v. Pitts 527 McHaney v. Cawthorn 108 Mcllvaine v. Lancaster 454 b, 487 Mclntyre i'. White 120 McKay v. Harrower 222, 299, 306 McKean v. Turner 548, 549 McKee v. Anderson 655 McKellar v. Couch 726 McKenzie v. Buchan 123, 143 V. Noble 509 a IMcKeon v. McDermott 701 McKinney v. Farmers' Nat. Bk. 239 V. Purcell 331 McLaui V. Simington 129 a INDEX TO CASES CITED. XXXIX McLauglilin v. Davis V. Swan a McLeod V. Harper McMechau i-. Griffing Mc^Ieekin v. State McMenomy v. Ferrers McMillan V. Dana 317, V. Richards McMinn v. Hall V. Whelan McNamara v. Ellis McNeil V. Bean McNeill V. Glass 0. Roache McPhail V. Hyatt McPherson o. A. & P. R V. Snowden 4 a, 509 a McQueen v. ISIiddletown JVIan. Co. 79 McRae v. Austin V. McLean McReady v- Rogers McRee v. Brown Mc Reynolds i'. Neal McWhorter v. Beavers Section luS 49U 185 d 241 510 a 611 319, 321, 323 585 550, 556 225 106 311 215 585 711 591 Section jNlansard v. Daley 526 Mansfield v. N. E. Express Co. 636 a jNlanton v. Poole 95 Mantz V. llendley 87, 93, 108, 131 Manufacturers' Bank i;. Osgood 684 Co. 321 327, 331 175, 426 659 87, 113 89 fl M. Mace V. Heald Mack V. McDaniel V. Parks Mackey v. Hodgson ■ Macomber v. Doane V. Wright Maduel v. Mousseaux Magee v. Callan Magne v. Seymour Mahany v. Kephart Maher v. Brown Mahnke v. Damon Maine F. & M. Ins Maples V. Tunis Marina, The Marion v. Faxon Maris v. Schermerhora Markham v. Gehan Marks v. Reinberg Marlin v. Kirksey Marnine v. Murphy_ Marqueze v. Sontheimer Co, Malcom v. Spoor Maley v. Barrett Malley v. Altman Malone v. Lindley V. Samuel Mamlock v. White Manchester v. Burns V. McKee V. Smith Mandel v. Peet Mandeville v. Welch Mankin lu Chandler Manley v. Headly Mann v. Buford Manny v. Adams 667 71a 252 665 611 560 551, 657 315 294 479 523 170 a V. Weeks 463, 481, .541 200 185 a 452 1 67 216 185 480 5 594 39, 93 a, 107, 120, 134, 399 611 5,706 93 h 464, 515, 059 245 V. V. V. V. 87, 88, 90 246 248 211 561 553 a 614 139 77 c, 175, 181a 700 196 599, 717 114 a 95 730, 744, 745 R. & B. Co. 550 291 431 10, 36 481 247 I. Co. jNIars V. Virginia H. Marsh v. Backus V. Davis V. Steele Marshall v. Alley V. Betner V. G. G. R. Marshall Town White Mars ton v. Carr V. Carter Martin v. Branch Bank 79 Dryden 221, 224, 229, 436 Foreman 453 Michael 225 Mobile & O. R. R. Co. 80 V. Potter V. Thompson Marty, In re Martz V. Detroit F. & M. Ins. Co Marvel v. Houston Marvin v. Havvley Marx V. Abramsou Mason v. Ambler V. Anderson V. Briggs V. Crab tree V. McCampbell V. Noonan V. Watts Mass. Nat. Bank v. Bullock Massey v. Scott V. Walker Masterson v. Phinizy Matheney v. Earl Matheny v. Galloway V. Hughes INIatheson v. Rutledge Mathews v. Densmore V. Park Mathis V. Clark Matthews v. Ausley 605 116, 139 13 551 496 506 87 594 207, 216 376 674 a 653 703 a 294 457 5,437 420 103 696 697 589 527 107, 185 a 490 679 187, 417 xl INDEX TO CASES CITED. Section Matthews v. Houghton 708 V. Sands 6iJG Mattingly v. Boyd 453, 665, 683, 700 V. Grimes 251 Maude v. Rodes 5 Maxfield v. Scott 372 Maxwell r. McBrayer 10 V. McGee 24G V. Stewart 5, 222 May V. Baker 457, 547 V. Courtnay 419 V. Gamble 134 b Mayberry v. Morris 588 Mayer V. Chattahoochie Nat. Bank 525 Mayes v. Phillips 481 Mayfield v. Cotton 742 a Mayhew v. Davis 684 a V. Dudley 98, 99 V. Scott 517 Maynards c. Cornwell 652 Meacham v. McCorbitt 481, 551, 659, 660, 667 Meade v. Smith 196 Means v. Osgood 219 Mears v. ^^'inslow 221, 263 Mechanics and Traders' Bank v. Dakin 225 V. Tlodge 512 Meeker v. Sanders 651 V. Wilson 223 Megee v. Beirne 5 ]\Ieggs V. Shaffer 405, 406 ]\Ieldrum v. Snow 246 ]Melton V. Troutman 743 Melville v. Brown 225, 248 IVIemphis v. Laski 516 Memphis R. R. Co. v. Wilcox 414 Mendes v. Freiters 285 !Mense r. Osbern 409 Merchants' M. I. Co. v. Brower 214 Meriani v. llundlett 708 IVIerrell v. Campbell 509, 516 Merrick v. Ilutt 222 ^Merrill v. Curtis 201, o08 V. Low 104 V. Sawyer 258 Mersereau v. Norton 248 Merwin v. Chicago 516 Messner v. Hutchins 133 V. Lewis 133,200, 2i)8 Metcalf r. Clark 81,193 V. Steele 460 V. Young 174 Metzner v. Graham 251 Meuley v. Zeigler 207, 237 Michael r. Thomas 168 Michigan C. R. Co. v. Chicago & M. L. S. R. Co. 518 Section Middlebrook v. Ames 49, 399 Midland P. R. R. Co. v.McDermid 478 jNliere v. Brush 144 Millar v. Babcock 448 ^Nlillaudon v. Foucher 108 Milledgeville Man. Co. v. Rives 287 Miller v. Adsit 367 V. Baker 198 V. Bannister 185 a V. Brinkerhoff 88 V. Chandler 418 V. Chicago, M, & St. P. R. Co. 93 a V. Clark 285, 381 V. Desha .339 V. Dungan 5 V. Hooe 474 V. Hubbard 611 V. McLain 706 V. McMillan 207 V. Munson 107 a V. Richardson 489, 541, 572 r. Shackleford 212, 213 V. Sharp 5 V. Spreeher 420 Milliken v. Bailey ' 236 a V. Loring 717 Millison v. Fisk . 494, 711 Mills V. Block 225 V. Camp . 258 V. Findlay 25 V. INlartin 85 D.Stewart 706,711,720' Mims V. Parker 550, 583, 659 V. West 588 ]\Iinard v. Lawler 624 Minchin v. Moore 639 Mineral Point R. R. Co. v. Keep 79, 80 ISIines v. Pyle 501 Minga v. Zollicoffer 10 Mitchell I'. Byrne 245, 535 V. Chancellor 162 V. Chc'snut 420 V. Gooch 384 V. Ilinman 349, 367 V. Mattingly 173, 732 V. Merrill 334 V. Pitts 94 V. Shook 11 V. Skinner 418 V. United States 58 V. Watson 459 a Mobile V. Rowland 516 Mobile & Ohio R. R. Co. v. Whit- ney 674 a Mobiey V. Lonbat 570 Mock V. King 496 INDEX TO CASES CITED, xli Monroe v. Bishop V. Cutter Montague v. Gaddis Monte AUegre, The Monterey v. McKee Montgomery v. Tilley Section 27 321 70 a 89 a 27 69 Montgomery Gas Light Co. v. Merrick 701, 711 Mooar v. Walker 259, 471 Moody V. Levy 106 a, 107_a Moon V. Hawks 254: V. Story 342 Mooney v. Kavanaugh 288 V. U. P. R. Co. 452, 478, 597 Moor V. Towle 465, 647 Moore v. Angiolette 408 V. Chattanooga 516 V. C. R. I. & P. R. Co. 697 V. Coates 205 V. Dickerson 28 V. Fargo 374, 376, 377 V. Gennett 5, 244, 480 V. Graves 267 V. Greene 589 V. Hawkins 405, 406 V. Holt 27 a, 63, 224, 453, 455 V. Kidder 237, 454 V. Lowrey 665 V. Mauck 113 V. Murdock 245 V. Pillow 481 V. Spademan 706 V. Stainton 452 V. Stanley 440 V. Thayer 422 V. Westervelt 292 V. Withenburg 158, 251 Moores v. White 81 Morange v. Edwards 323 Moreland v. Ruffin 216 Morey v. Sheltus 545 Morgan v. Avery 43, 47, 400 V. Dver 85 V. Furst 839, 340 V. Ide 246 V. Johnson 95 V. Neville 474, 706, 711 V. Nunes 65 V. Woods 441 Morrill v. Brown 481 11. Keyes 199 V. Raymond 491 a Morris v. Hall 333 a V. Ludlam 723 V. Penniman 506 V. Price 176 V. Shew 187 V. Trustees 144, 213 Section Morris v. U. P. R. Co. 5, 067 Morrison v. Alphin 317 V. Blodgett 381, 387 V. Crawford 185 c V. Fake 99, 101 «, 102 V. Lovejov 100 V. N. B. Institution 713 V. Ream 95 Morrow v. Weed 89 b Morse v. Betton . 299 V. Hodsden 327 a V. Holt 482 V. Hurd 198, 256, 392 V. MarshaU 659 V. Presby 85, 89 fe . V. Smith 210, 271 Morton v. Pearman 27 V. AVebb 701 Moser v. Maberry 679 Mott V. Lawrence 100 V. Smith 731 Moulton V. Chadborne 344 V. Chapin 381, 388, 393 Mowrey v. Crocker 605 Mowry v. Davenport 679 Moyer v. Lobengeir 711 Mueth V. Schardin 465 a ]\luir V. Schenck 608 Mulhall V. Quinn 613 Munroe v. Cocke 104 V. Luke _ 241 Murphy v. Baldwin 67 V. Crew 429 V. Higginbottom 89 a Murray v. Cone 93, 131 V. Eldridge 262 V. Gibson 224 V. Ilankin 95 V. Shearer 323 Murrell v. Johnson 509, 650 Muskett V. Drummond 85 IMyatt V. Lockhart 525, 654 Myer v. Liverpool L. & G. Ins. Co. 458, 478 Myers v. Baltzell 672 V. Beeman 588 V. Farrell 108 a, 175 V. Lewis 93, 131 V. Mott 244, 422 V. Myers 193, 251 V. Perry 318 V. Smith 317, 570, 658 c V. Urich 711 N. Xailor v. French Nancarrow v. Young 63 326 xlii INDEX TO CASES CITED. Section Napper v. Noland 103 b Nash V. Bropliy 674 e V. Farringtou 195, 2-14 a V. Mallory 187 ft Nashville Bank v. Ragsdale 244 Nasoii I'. Esten 193 Nathan v. Giles 223, 533, 700 National Bank v. Staley 458 V. Titsworth 695 Navloi' V. Denuie 256 Neal v. Gordon 104, 336 a, 339 Neally v. Ambrose 640 V. Judkins 184 a Near v. MitcheU 700 Neilson v. Scott 650 Nelson v. Conner 509 a V. Munch 101 Nesbitt 17. Campbell 083 V. Ware 545 Nesmith v. Drum 528 Netteri-. Chicago Board of Trade 471 Neuer v. O' Fallon 487, 514 Nevins v. Rockingham M. F. I. Co. 669 Newby v. Hill 614 Newell V. Adams 578 f. Blair 528, G50 V. Ferris 671 New England M. I. Co. v. Chand- ler 490 New England Screw Co. v. Bliven 703 ft New Hampshire I. F. Co. v. Piatt 481 New Haven Saw-Mill Co. v. Fow- ler 13 a, 508 Newlin v. Scott 662 Newman v. Kane 3()2 V. Manning 437, 437 a New Orleans v. Garland 108 New Orleans C. & B. Co. v. Comly 45 New Orleans M & C. R. R. Co. v. Long 675 Newton v. Adams 200, 256 Nichols V. Patten 210, 256, 290 r. Schofield 511, 557 r. Valentine 244 c, 291 Nicholson r. Crook 487 Nickerson r. Chase 483, 688 Noble V. Holmes 185 a, 225 r. iMerrill 658 ft r. Sipith 605 r. Thompson Oil Co. 527, 706, 710 « Nockles r. Eggspieler 170 Nolcn V. Crook 533 Nolh; (,". Thompson 162 a, 729 Norcrnss v. Benton 684 Nordhaus v. Peterson 170 a, 7o5 Norris v. Bridgham V. Burgoyne V. Hall V. Watson North V. IMcDonald Northam v. Cartwright Section 393 667 665, 708 249 54 a 605, 608 Northern Central R. Co. v. Rider 451 ft, 470 Northrup v. Garrett 176 Northwestern Ins. Co. v. Atkins 549 Norton v. Kearney 185 a V. People 367 V. Piscataqua Ins. Co. 604, 609 V. Soule 667 r. AVinter 622 Norvell v. Porter 451 d Noyes r. Brown ' 614 V. Butler 87 a V. Forster 619 Nugent V. Opdyke 607, 630 Nutter V. Connett 221, 263 V. F. & L. R. Co. 644 Nye V. Liscomb 474 O. Oakes v. !Marquardt 658 c Oakey v. M. & A. Railroad Co. 653 Oakley v. Aspinwall 5 Oberne v. Gaylord 175 Oberteuffer v. Harwood 610 O'Brien v. Collins 517 V. Daniel 96 V. Liddell 624, 627 V. Norris 245 O'Connor v. Blake 228 V. O'Connor 697 Odend'hal v. Devlin 464 Odiorne r. Colley 256, 267, 269. 291, 353, 356 Odom V. Shackleford 36 Oestrich v. Greenbaum 196 Otters V. Aehle 300 O'Farrell v. Stockman 116 Offutt V. Edwards 52, 158, 175, 176, 408 Ogilvie V. Washburn 37 a O'Gradv v. Julian 730 a, 745 Ohio Life Ins. & Tr. Co. v. Urbana Ins. Co. 219 Ohio & M. R. W. Co. v. Alvey 676 a, 697, 711 Ohors V. Hill 249 Oldham v. Ledbetter 576, 696, 711, 717 V. Scrivener 221, 222, 229 267 Olin V. Figeroux 706 INDEX TO CASES CITED. xliii Oliver v. Atkinson V. C. & A. R. I V. Gwin V. Lake V. Smith V. Wilson Oluey V. Shepherd O'JS'eal V. Owens V. Wilson O'Neil V. N. Y. & Co. Orear v. Cloue^h Oregon 11. & N. Co. Oriental Bank u. T. Ormond v. Moye Ormsbee v. Davis Ormsby v. Anson Orr V. McBryde Orton V. Noonan Osborn v. Schiffer Osborne v. Jordan V. Schutt Osgood V. Holyoke Otis V. Ford V. Hitchcock V. Jones Overton v. Hill Owen V. Dixon V. Estes V. Jordan 'Owens V. Johns V. Starr Owings V. Xorwood Oystead v. Slied Ozmore v. Hood Pace V. Smith Paddock V. Palmer Page V. Belt V. Crosby V. Ford V. Generes V. Jewett V. Long V. Thompson V. Thrall Paihles v. Roux Paine v. Farr V. iNIooreland Palmer v. Bosher V. Foley V. Hooks V. Noyes r. Thayer V. Vance Section Section G.39 Pancost V. Washington 422 R. Co. 472 Paradise v. F. & M. Bank 193, 251 318 Paramore v. Pain 723 245, 517 Park V. Mathews 490 511 Parker v. Danforth 562, 563 48, 52, 147 V. Don ally 496 204 V. Farr 223, 226, 317, 453, 453 h 124 V. Guillow 566 89 a V. Kinsman 453 S. P. Mining V. Overman 87 6 111 V. Page 633 112 V. Parker ' 226, 453, 453 b, V. Gates 458, 658 e 658 bb, 674 a Ins. Co. 704 V. Porter » 252 a 588, 592 V. W^right 570 65G Parks V. Cushman 244, 247, 496, 638 498 251, 508 Parmele v. Johnston 107 400 V. McLaughlin 246 123, 409 Parmenter v. Cliilds 658 e 667 Parmer v. Ballard 697, 713 480 Parrott v. Dearborn 292 184 a Parsons v. McGavock 516 553 V. Paine 441 a 85 V. Root 686 185 c V. Stockbridge 102 506 V. Strong 394 225 Paschall v. Whitsett 424 517 Patrick v. Montader 275 85 Patten v. Wilson 604 91 a, 120 Patterson v. Harland 535 117, 185 V. McLaughlin 81 222 V. Perry 671 249 Patton V. Gates 599 224 V. Smith 541 Paul V. Hussey 89 6 V. Johnson 674 c V. Paul 463 , 541, 548 V. Reed 545 509 V. Slason 203 396 Pawley v. Gains 506 190 Pawling V. Bird 5 527 Paxson V. Sanderson 491 132 Paxton V. Steckel 198, 204 205 Payne v. Able 323 b, 341 b 282, 285 V. Mobile 612, 067 338 V. Snell 112, 318 607 Peace v. Jones 5r-7 345, 372 Peacock v. Pembroke 247 318 V. Wildes 81 204. 210 a Pearce v. Baldridge 208 437, 418 V. Shorter 481 113 Pearson v. Gayle 120 114 Pearsons v. Tincker 374 702 Peat Fuel Co. v. Tuck 27 499, 6f57 Peck, In re 4r.3 212, 213, 218 V. Barnum 477, 562 327 a V. Jeuness 425 xliv ESTDEX TO CASES CITED. Section Peck V. Sill 282 V. Stratton 460 a V. Walton 588 V. "Webber 223, 224 V. Whiting 225 Peebles v. Meeds 550 V. Weir 332 Peeler v. Stebbins 194 Peet V. McDaniel 548 V. Whitmore 660 Peirce i'. Partridge 282 Peiser v. Cnshman 134 Pellnian v. Hart 6U8 Pendleton v. Perkins 225, 516 Penhallow v. Dwight 249 Penn v. Pelan 636 b Pennebaker v. Tomlinson 516 n Pennell v. Grubb 086, 687 Penniman v. Richardson 170 V. Kuggles 487 V. Smith 607, 620 Pennoyer v. NefE 5, 449 Penobscot Broom Corporation v. Wilkins 390, 392 People V. Cameron 224, 317, 331 V. Hubbard 200 a V. Johnson 525, 583, 659 t). Koeber 85 V. Omaha 516 , r. Recorder 101 a V. Scliuyler 196 V. Tioga C. P. 610 People's Bank v. Shryock 570 Perego v. Bonesteel 251 Perine v. George 659 Perkins v. Bragg 244 a V. Guy 625 V. Noirell 222, 422 V. Parker 708 V. Pitman ISO Perley v. Foster 291, 307, 371 Perminter v. M'Daniel 121 Perrin v. Claflin 196 V. Leverett 236 Perrine arls. Evans 67 Perjy v. Carr 200 V. Coates 481 V. Post 342 V. Sharpe 269 V. Thoi-nton 457, 502 V. Washbura 681 a Peter v. Butler 16 Peters v. Conway 187 h V. League 658 e Peterson v. Loring 067 Pettes V. ]\Iarsh 379 V. Spalding 561 Pettingill v. A. R. R. Co. 465 a Section Pettit V. Mercer 154, 156, 170, 174, 175, 178, 726 Pfoutz V. Comford 62 Phelan v. Ganebin 509 Phelps V. A. T. & S. F. R. Co. 667 V. Baker 5 V. Boughton 451 6 V. Campbell 311 V. Coggeshall 176 V. Gilchrist 344, 373, 376, 377 V. Holker 5 V. Young 96 Philips V. Hines 317 Phillips V. Ash 239 V. Bridge 347, 357, 362 V. Germon 658 b V. Hall 381 V. Harvey 342 V. Orr 53 a Phillipsburgh Bank v. L. R. R. Co. 80, 402 Pickering v. AVendell 247, 489 Pickler v. Rainey 650, 659 Picquet v. Swan 245, 499, 539, 659, 683 Pierce w. Benjamin 185 c V. Boston 084 a V. Carle ton 508, 583, 659, 696, 697, 711 V, Chicago & N. R. Co. 480 V. Jackson 244 v. Strickland 206, 208, 209, 361, 362 Pierse v. Smith 100 Pierson v. llovey 351, 353 V. iMcCahill 701 V. McCormick 493 V. Rubb 224 V. Weller 490 Pike V. Pike 275 Pillsbury v. Small 292 a Pinney v. Hershfield 168 Pinson v. Kirsh ]75 Pioneer Printing Co. v. Sanborn 659 Piper V. Piper 463, 500, 541 Piscataqua Bank v. Turnley 10 Pitts V. Burroughs 52, 742 V. Mower 007, 630 Pixley V. Reed 729 Plaisted r. Hoar 388 Plant V. Smythe 234 Planters' Bank v. Byrne 141 V. Walker 212 Planters & Merchants' Bank v. Andrews 79. 127, 147, 418 a, 697 V. Leavens 471, 472 Platen v. Byck 658 e Piatt V. Brown 200 INDEX TO CASES CITED. xlv Plumb V. Woodmansee Pluininex' v. Rundlett Pluuipton V. Cook Pluukett V. Sauer Plympton v. Bigelow Poage V. Poage Poe ('. St. Mary's College Pogue V. Joyner Pollard V. Ross Polley v. Lenox Iron Works Pollock V. Gantt Pouieroy v. Ricketts Pomroy v. Kingsley V. Parmlee Pond V. Griffin V. Skidmore Ponton V. Griffin Pool V. AVebster Poole V. Symonds Poor V. Colburn Pope V. Hibernia Ins. Co. V. Hunter Porter v. Brooks V. Bullard V. Byrne V. Earthman V. Hildebrand V. Pico V. Stevens Posey V. Buckner Poteet V. Boyd Potter V. Cain V. Hall V. Kitchen V. Mather V. Sewall Pottier & S. Man. Co. v. Taylor 516 Pounds V. Hamner 157, 176, 672, 697, 711 Powell V. Aiken 245 V. McKee 193 V. ]\Iatthews 73 V. Samnions 545, 659, 689 a Powers V. Hurst 108 Poydras v. Delaware 611 Pratt V. CunlifE 697 V. Wheeler 237 Prentiss v. Bliss 244, 251, 505 V. Danaher 030 n Prescott V. Hull 607, 717 V. Parker 622, 605 Pressley v. ]\IcDonald 247 Presnall v. Mabry 545, 583, 659 Preston v. Cooper 726 Prewitt V. Carmichael 10 Section 176 405 128 170 6 244 103 6 517 335 506 198, 210, 258, 291 174, 175, 727 95 290, 292 a 193 221, 229 258 614 93, 94 291, 367 553 a 36 a, 113, 696 141 35 610, 614 237 263 10 221 461, 659 11 323 559, 594 252 67 225 392 Price V. Bradford V. Brady V. Cox V. Higgins V. Kennedy V. Mazange V. Merritt Section 599 481, 588 27 459, 663, 673 339 654 28, 95 Princeton Man. Co. v. White 605 Pringle i'. Black 81 V. Carter 85 Probate Court v. Niles 247 Proseus v. Mason 460 Proskey v. West 126, 145 Prout V. Grout 662 Providence Co. Bank ii. Benson 604 Providence & S. S. Co. v. Virginia F. & M. Ins. Co. 516 a Provis V. Cheves 245 Pruitt V. Armstrong 494 Puff V. Huchter 674/ Puffer V. Graves 707 PuUiam v. Aler 674 a Purcell V. Steele 329 Putnam, Ex parte 420 V. Hall 219, 284 Putney v. Farnham 614 Pyle V. Cravens 442 Q. Quarles v. Porter V. Robinson Quigg V. Kittredge Quillen v. Arnold Quine v. Mayes E. 586, 589 104 464, 665 325 a 318, 389 Raiguel v. McConnell Railroad v. Peoples V. Todd Ralph V. Nolan Rand v. Sargent V. White Mountain R. R. Randall v. Way Randolph v. Carlton 481 478 460 275 198 548 491 a 224 V. Heaslip 662 V. Little 480 Rankin v. Dulaney 205 V. Simoiids 6.33, 658 a, 683, 689 a Ranlett v. Blodgett 189, 189 a, 253 a Banning v. Reeves 130, 170 Ransom v. Halcott 190 V. Hays 548 V. WiUiams 85, 87 b Raspillier v. Brownson 162 xlvi INDEX TO CASES CITED. Section Rathbone v. Ship London 317 Haver v. Webster 10, 173, 743 Ray V. Faulkner 526 V. Underwood 474 Eaymond v. Bell 89 h V. Green 176 V. Rockland Co. 451 &, 470 Kayne v. Taylor 67 Raynes i-. LoVell I. B. Society 487 Rea I'. Lewis 729 Read r. Sprague 251 V. Ware 28, 408 Reagan v. Kitchen 335 V. Pacific Railroad 461, 659 Reams v. McXail 185 Redd V. Burrus 525 Reddick v. Smith 251, 505 Reding v. Ridge 108 Redus V. "Wofford 36, 91, 221, 229 Redwood v. Cousequa 14, 24 Reed's Appeal 62 Reed v. Bank of Ky. 123 V. Beach ' 10 V. Ennis 275 V. Howard 248 V. Ketch 63 V. Ownby 234 V. Perkins 204 V. Samuels 158 Reeves v. Clark 85 V. Comly 45 V. Johnson 223 V. Townsend 89 h Reid V. McLeod 564 a Reidhar v. Berger 175, 178 Reinhart v. Hardesty 551 Reiss V. Brady 418 Reniick v. Atkinson 394 Remington v. Cady 248 Renneker r. Davis 453 Repine v. IMcPherson 207, 449 Reubens v. Joel 225 Reybnrn r. Brackett 98 Reynolds v. Bell 420 r. Culbreath 172 r. I)e Gear 729 r. Jordan 317 V. McKinnev 520 Rhine v. D. II. & W. R. Co. 613 Rhoads r. Woods 297 Rliode Island v. Massachusetts 85, 86 Rhode Island Ex. Bank v. Hawk- ins 658 e Rhodes V. Smith 333 a Rice V. Beers 34 V. Jerenson 33 a V. Wilkins 303, 361 Rich V. Bell 309 Section Rich V. Reed 659 V. Thornton ' 36, 420 V. Waters 551 Richard v. Mooney 332, 342 Richards r. Allen 490 V. Craig 335 V. Daggett 195 v. Griggs 497, 607 V. StejDhenson 461 V. Storer 325 Richardson v. Gurney 543 V. Hall 196 V. Hickman 711 V. Lacey 465 a V. Lester 458 v. White 633 a V. Whiting 489 Richter v. Wise 95 Riddle v. Etting 673 Ridgway r. Smith 70 Ridley v. Ridley 436 Ridlo V. Cressey 411 Riley v. Hirst 464, 515 Rinchey v. Strj-ker 185 a, 225 Ripley v. Severance 465, 523 Rippen v. Schoen 6.53 Risewick v. Davis 59 a, 65 Risley v. Welles 465 Rittenhouse v. Harman 106 Ritter v. Scannell 204 Rives V. Wilborne 331 Rix V. Elliott 561 Robbins v. Bacon 610 Robert v. Hodges 225 Roberts v. Barry 460 V. Burke 36 V. Drinkard 551 I'. Dunn 251, 267, 339 Robertson r. Baker 607 V. Beall 508 V. Forrest 221, 231, 255 V. Kinkead 207 V. Roberts 696,711 V. Scales 525 Robeson v. Carpenter 707 V. M. & A. Railroad Co. 660 Robinson, Ex parte 87, 100 V. Burton 104, 113 V. Ensign 207 r. Hall 560, 667, 674 a V. Holt 199 r. Howard 506 V. iVIansfield 197, 357, 369, 392 V. jMitchell 575 V. National Bank 80 r. Rapelye 653 V. Starr 658 b V. Tevis 570 INDEX TO CASES CITED. xlvii Section Robinson r. "Ward 5 V. Woelpper 247 Roby V. Labuzan GC7 Roche r. R. I. Ins. Ass'n 478 Rochefeller v. Ploysradt 125 Rochereau i'. Guidry 676 «, 711 Rockwood V. Varnum 263, 270 Rodgers v. Bonner 221, 236 V. Hendsley 602 V. Smith 89 a Roelofsou V. Hatch 22 Rogers v. Coleman 87 a V. Ellis 101 a V. Fairfield 269 V. Pitman 725 Rogers L. Works ?'. Kelley 454 b Rollo V. Andes Ins. Co. 516 a Ronkendorft v. Taylor 87 b Rood V. Scott 351, 353, 382 Roosevelt v. Kellogg 59 Root V. Monroe 123 Roquest v. Steamer B. E. Clark 639 a, 643 Rose V. Whaley 460, 650, 658 e Rosenfield v. Howard 75 Rosenheim v. Fifield 101 Rosenthal v. Wehe 77 c Ross V. Austin 665 V. Clark 52 V. Clarke 251, 509 V. Edwards 251 V. M' Kinney 553 V. Philbrick 291 V. Pitts 706 r. Ross 471 Roulhac V. Rigby 146 Rowan v. Lamb 85, 89 b, 207 Rowe V. Page 351 Rowell's Case 425 Rowlett V. Lane 460 Rowley v. Berrian 449 a V. Jewett 329 a V. Rice 200 Roy 0. Heard 451 6 Rudd V. Paine 614 Rudolf I'. McDonald 262, 273 Ruff V. Ruff 707 Rumbough v. White 88 Rundlet v. Jordan 463, 481, 541, 548 Runlett V. Bell 344, 303 Runyan v. Morgan 71, 107 Ruppert V. Haug 95 Rushton V. Rowe 665 Russ V. Butterfield 204, 210 a Russell V. Clingan 551 V. Convers 594 V. Freedman's Sav. Bank 658 e V. Hinton 679 Section Russell V. Lewis 490, 647, 648 V. Perry 87 a V. Tunno 605 V. Wilson 69 Ruthe U.Green Bay & M. R. R. Co. ~ 92, 95 Ryall V. Marx 733 Ryder v. Hathaway 199 V. Thomas 168 Ryou V. Beau 112 s. Sabin v. Cooper 560, 561 Sackett v. McCord 173 Saco V. Hopkinton 184 a Sadler v. Prairie Lodge 697, 697 a Saddlesvene v. Arms 10 Saffaracus v. Bennett 446 Sagely v. LiA'ermore 299 Sampson v. Hyde 634, 656, 683 Samuel v. Agnew 245 V. Brite 116, 139 Sanborn v. Buswell 376 Sanders v. Hughes 154, 726 Sanderson v. Edwards 290, 292 b, 292 e, 300 Sandidge v. Graves 522 Sands v. Matthews 611 Sanford v. Bliss 659, 660, 067 V. Boring 290 V. Pond 388 V. Willetts 175 Sangster v. Butt 715 V. Commonwealth 196 Sappingtou r. Oeschli 234 Sargeant v. Andrews 708 V. Helmbold 10 Sargent v. Carr 245, 539 V. Wood 674 a Sartin v. Wier 339 Saulter v. Butler 141 Saunders ?-. Columbus L. I. Co. 207, 239 Savage's Case 702, 708 Savage v. Davis 244 b Savery v. Browning 234 Sawyer v. Arnold 107 V. Mason 388, 389, 392, 395 V. jAferrill 199 V. Thompson 474 V. Webb 642, 658 (/ Sayward v. Drew 551, 557, 667 Scales V. Scott 225 V. Swan 638 Scanlan v. O'Brien 336, 339 Scarborough v. Malone 222, 268 a, 2GS6 xlviii INDEX TO CASES CITED. Section Schacklett & Clyde's Appeal 224, 2-_'lJ Schaeffer v. IMarieuthal 291 Schafer r. Vizeiia 659 Schall r. Bly 399 a Schatzill r. Bolton • 570 Scheib v. Baldwin 191 h Schepler v. Garriscan 245 Scliindler v. Smith 451 b Schlater v. Broaddus 318 Schlemmer v. Myerstein 406 a Schlussell V. Wiilet 225 Scliolefield v. Bradlee 251, 453 Scholfield v. Bell 246 Schoouuiaker v. Spencer 100 Schoppenhast v. Bollman 697 Schrimpf v. McArdle 129, 737 Schroeder, Matter of 49 Schuyler v. Sylvester 331 Schwab V. Gingerick 654 Schwein v. Sims 339 Scofield V. Sanders 537 Scott V. Brigham 244 a, 480 V. Crane 305 V. Doneghy 90 « V. Hill 589 V. McMillen 225 V. Macy 147 V. Llanchester Print Works 239 V. Ray 656 V. AViiittemore 372, 381, 386, 389 Seamon v. Bank 687 Searcy r. Platte County 409 Searle v. Preston 227 Sears v. Gearn 248 V. Terry 85, 87 a Seay v. Greenwood 157, 176 Sebor v. Armstrong 634, 656 Security Loan Ass'n v. Weems 697 Seeley v. Brown 288 Seibert r. Switzer 262, 275 Self V. Kirkland 686, 689 Selma R. & D. R. R. Co. V. Tyson 478 Selz V. Belden 177 Senecal v. Smith loi, 158, 726, 732 Sessions v. Jones 336 V. Stevens 708 Sevier v. Tiirockmorton 654 Sevvall V. Franklin 333 V. Mattoon 302, 309, 311 V. Nicholls 245 Seward r. Ileflin 714, 717 Sewell V. Savage 221 r. Soules 386 Sexey v. Adkinson 185 n Sexton i;. Amos 639, 652 Seymour v. Kramer 465 V. Newton 245 Section Shadduck v. Marsh 402 Shaffer v. Mason 10 V. Sundwall 90 a Sharp V. Clark 507, 622 V. Speir 87 b Sharpe v. Hunter 157, 170 Shattuck V. Smith 531 Shaughnessy v. Fogg 641 Shaver v. White 729 Shaw V. Bunker 634 V. Holmes 185, 189 V. Laughton 373, 385 V. Beckett 684 a Sheafe v. Sheafe 225 Shealy v. Toole 701 Shearer v. Handy 656 Sheedy v. Second Xat. Bank 451 a, 457, 570 Sheets v. Culver 585, 588 Sheetz i\ Hobensach 671 Sheldon v. Xewton 89 b V. Root 244 V. Simonds 679 V. Stewart 399 a Shephard v. Butterfield 256 Sheppard v. Collins 151, 327 a, 329 Sherrod v. Davis 428 Sherry v. Schuyler 185 c Sherwood v. Reade 87 b Shetler v. Thomas 575 Shewell v. Keen 499 Shinn v. Zimmerman 622, 625 Shipman v. Woodbury 62 Shipp V. Davis 101 a Shirley v. Byrnes 317 Shivers v. AVilson 90, 096 Shockley v. Davis 139 Short r. Moore 247 Shove V. Dow 263, 264 V. Farwell 74 a Shrewsbury v. Pearson 404 Shriver v. Harbaugh 189 V. Lvnn 87 a Shuff V. Morgan 196 Shugart v. Orr 49, 60 Shuler i\ Bryson 588 Shultz r. Morrison 176 Shumway v. Carpenter 384 V. Butter 199 V. Stillraan 85, 87 a Shuttlesworth v. Noyes 247 Sias I'. Badger 210 Sibley v. Brown 189, 199, 253 a V. Fernie 248 V. Story 345, 351, 353, 369, 379 Sickman v. Lapsley 666 Sievers v. Woodburu S. W. Co. 451 a, 625 INDEX TO CASES CITED. xlis Section Sigourney v. Eaton 2t)8 Siiverwood ;;. Bellar 671 Simon v. Stetter 91 Simons v. Jacobs 45, 408 V. TMiartenaby 540 Simpson v. Bibber 526 V. Harry 489 V. Knight 132 V. Minor 90 r. Reynolds 545 a V. Tippin 524 Sims r. Jacobson 196 a Sinclair v. Tarbox 356, 379 Singleton v. Wofford 91 Skillman v. Bethany 245 Skinner v. Moore 588 V. Stuart 291 Skinuion v. Kelley 99 Skip]3er v. Foster 624 Skowhegan Bank v. Farrar 481, 485 Slate V. Barker 256 Slatter v. Tiernan 658 b Slaughter v. Bevans 87, 99 Sledsfe V. Lee 166 V. ilcLaren Sleet V. "Williams Sloan V. Forse V. McCracken Small V. Hutchins Smead i'. Crisfield Smith V. Barker V. Blatchford 154, 156, 732 100 440 729 349 31 620 576, 581, 588, 701, 717 V. B. C. & M. EaHroad 478, 479, 667, 682 V. Bradstreet 224 r. Brown 881, 650 1-. Bruner 659 V. Gaboon 552, 570 V. Chadwick 195, 244 a V. Chapman 550, 583, 659, 697 t'. Church 292 V. Cicotte 189, 253 a V. Clarke 526, 527, 533, 659 V. Clinton Bridge Co. 222, 453 V. Cudworth 381 r. Dalton 62 V. Davis 95, 550 V. Durbridge 618 V. Eakin 154, 160, 166 V. Elliot 418 V. Fargo 327 a V. Flanders 704 t'. German Bank 665 V. Gettinger 275 V. Heidecker 654 V. Herring 399 V. K. & P. R. R. Co. 481 Smith V. Leavitts V. Low I'. Luce V. McCutchen V. McMicken V. Mitchell V. Muirheid V. Xiles V. Orser V. Osgood V. Painter V. FeojAe^s Bank V. Picket V. Posey V. Riley V. Sanborn V. Smith V. Stearns V. Sterritt Section 215 212 87, 96, 100 449, 696 570 386, 394 225 245 256 189 89 a 235 517 546 81 199 210 670, 685, 688 608 V- Story 62, 154, 160, 170, 726, 732, 736 V. Wadleigh 372 Smoot V. Eslava 717 V. Hart 516 Snead v. "Wegman 426 Snediker v. Quick 85 SneU V. AUen 222, 224 V. The State 292 Snelling v. Bryce 116 a Somerville v. Brown 588 Souberain v. Renaux 95 South Carolina R. R. Co. t;. Mc- Donald 79, 80 V. People's S. Inst'n 80 Southern Bank v. jNIcDonald 262, 451 b Spaids r. Barrett 726, 729. 732 Spalding v. Imlay 516 a V. Simms 46, 64 Spaulding v. Wallett 726 Speak V. Kinsey 560 Spear v. Hill 395 a V. Hubbard 289 V. King 105, 133, 415 Spears v. Chapman 659 Speed V. Brown 516 Speelman v. Chaffee 224 a Speight t'. Brock 580 Speise v. ]\IcCoy 520 Spencer v. Blaisdell 244 V. Deagle 74 V. Williams 372, 381 Spengler v. Davy 732, 732 a Spicer v. Spicer 620, 701 Spooner v. Rowland 674 a Sprague v. H. P. & F. R. R. Co. 80, 479 V. Stpam Xav. Co. 465 a V. Wheatland 384 INDEX TO CASES CITED. Section Spring t'. Aver 663, 671, dT-i Sproule f. McXulty 52.3 Spruill V. Trader 7u7 St. Amant i?. De Beixcedon 400 St. George v. O'Conuell 198 St. Louis r. Regenfuss 594, 600 St. Louis Perpetual Ins. Co. v. Co- hen 79, 580, 589, 697 Stackpole v. Hilton 374 V. Jsewman 639, 652 Stacy V. Stichton 101 a Stadler v. Parmlee 106, 550 Stahl V. Webster 663 Stamford Bank v. Ferris 259 Staniels v. Raymond 453, 480 Stanley v. Drinkwater 353, 389 V. Ogden 10 V. Perley 221 Stanton v. Holmes 81 Staples V. Fairchild 88, 90 V. Staples 464, 50G, 515 Starbuck v. oSIurray 87 a Starke v. Marshall 96, 187 Starr v. Lyon 282 V. Moore 222, 294 State V. Beall 25 V. Beldsmeier 170, 175 r. Berry 89 b, 150 V. Blackman 174 V. Boothe 505 V. Brownlee 525 r. Chamberliu 121 V. Eberly 516 V. Fitzpatrick 196, 426 f. Fortinberry 114 b, 131 V. Foster 185 V. Ilinchman 89 b V. Krebs 247 V. Lawson 244 V. ]\Ianly 244 a V. Metzger 85 t'. Moore 196 V. Ogle 294 V. O'Neill 170 V. Penner 204 V. Shreeve 85 V. Taj-lor 244 V. Thomas 175 V. Tliompson 121 V. Williams 162 a State Bank v. Ilinton 122 Steamboat Napoleon r. Etter 130 Stebbins v. Fitch 697, 711 V. Peeler 480 Stedman v. Yickery 465, 650 Steel V. Smith 5 Steiner r. Central Railroad 470 Steinraetz v. Nixon 211 Section Stephen v. Thayer 221 Stephens v. Ely 85 Stephenson v. Doe 412 V. Walden 245 Sterling City Mining Co. v. Cock 166 V. Hughes 166 Stetson V. Cleneay 588 Steuart v. West 557, 588 Steuben County Bank v. Alberger 99 Stevens v. Bailey 381 V. Briggs -254 V. Dillman 451 c, 453, 530 I'. Fames , 379, 380 V. Gwathmey 653, 655, 665 V. Pugh 615 a V. Stevens 381, 394, 608 Stevenson v. McLean 185 V. Prather 224 V. Robbins 106, 115 Stewart v. Cole 70 a V. Dobbs 316 h V. Katz 94 a, 132 V. Martin 194 a V. JNIitchell 88 V. Platts 373, 396 V. Sonneborn 729 Stickley v. Little 658 a Stickney v. Davis 197 Stiles V. Davis 291, 453 Stille V. Laj-ton 714 Stillman v. Isham 493 Stills V. Harmon 501 Stimpson v. Maiden 711 Stimsou V. Ward 381 Stockley v. Wadman 221, 229, 256 Stockton V. Downey 205, 256 V. Hall 717 Stoddart v. McMahan 207 Stone V. Abbott 261 V. Anderson 225 V. Dean 481, 566, 588 V. INIagruder 696 V. Miller 262 V. Sleeper 381 V. Swift 734, 743 Stoney v. McNeill 112, 144, 414 Storm V. Adams 508 Stouffer V. Niple 48 Stout V. Folger 91 I'. Leonard 65 Stoutenburgh r. Yandenbnrgh 248 Stratton v. lirigham 62 V. Ham 499 Straus V. AVessel 245 a Strauss v. Railroad Co. 551, 667 Striker v. Kelly 85 Strock V. Little 10 Strong V. Ilollon 662 LNDEX TO CASES CITED. Strong V. Hoyt V. Mitchell V. Smith V. Wheeler Strong's Ex'r v. Bass Strout V. Bradbury Struthers r. ^McDowell Stubblefield v. Hagerty Sturdevant v. Tuttle Stiirges V. Kendall Sturgis r. Kuapp Sturtevant i'. Robinson Sublett V. Wood Summers v. Glancey Sumpter v. Wilson Sun Mutual Ins. Co. v Supervisors i-. Le Clerc Suydam v. Huggeford Swagar v. Pierce Swain v. Mizner Swamscot Machine tridge Swan V. O'Fallon Swaney v. Hutchins Swart V. Thomas Swayze v. Doe Sweeny v. Allen Sweet V. Reed Sweringen v. Eberius Section I 374; 595, 685 ! 247, 452 , 278 672, 683 267, 291, 371 90 c 576 10 658 b 114 597, 677 408 123 150 Seeligson 460, 470, 697 85 228, 262, 413 10 200 a Co. V. Par- 665, 669, 685 409 61 244 J 443 620, 624 570 j 422 Tappan v. Evans V. Harrison Tar bell v. Bradley V. Dickinson Tate V. Morehead Section 225 221, 229 10 311 451 a Swett V. Brown V. Ordway Swezey v. Bartlett Swift V. Crocker V. Plessner Swisher v. Fitch Switzer v. Carson 251,. 270, 453, 540 595 400 280 176 594 409 Symons v. Northern 112, 414 Syracuse City Bank v. Coville 227 T. Taber v. Nve 551 Tabor v. Big P. C. S. M. Co. 10 V. Van Vrauken 717 Taft V. Bowker 604 Taffts I'. Manlove 221, 255 a, 256 Taiutor v. Williams 256, 290, 292 a Talbot V. Harding 231, 455 V. Pierce 421 Talbott V. Tarlton 659, 660 Talcott V. Rozenberg 75 Taliaferro i;. Lane 81 Tallman v. Bigelow 100 Tamm v. Williams 473 Tarns V. Bullitt 707 Tapp V. Green 650 Taylor- r. B. & M. R. R. Co. 469, 594 V. Carryl 223, 251 V. Cheever 35 V. Drane 27 a V. Emery 265 V. Gardner 686 r. Gillian 481, 509 a V. Jones 194, 199 V. Knowlton 210 a V. Knox 63 V. Kulruke 74 V. Lynch 612 V. Mixter 236, 237, 239 V. Myers 74 V. Nichols 381 V. Phelps 706 V. Reed 95 V. Ricards 131, 399 V. Royal Saxon 223 r. Smith 95, 112 V. Taylor 323 Tazewell v. Barrett 665 Temple v. Cochran 409 V. Hooker 289 Templeman v. Fauntleroy 665 Tennent v. Battey 225 Terry i'. Lindsay 496 V. Sisson 674 c Te\'is V. Hughes 147 Thacher v. Bancroft 422 Thatcher v. Gof£ 136 V. Miller 216, 217 V. Powell 85, 87 b Thayer v. Hunt 381, 385 V. Hutchinson 367 V. Partridge 682 c, 684 a V. Pratt 620 V. Sherman 464, 515 V. Southwick 548, 667 V. Tyler 494, 697 V. Willet 225 Theirman v. Vahle 96 Thomas v. Fuller 650 V. Gibbons 559 V. Goodwin 523 V. Hopper 457, 684 V. Lusk 570 V. Price 655 V. Sprague 652 V. Wooldridge 625 Thompson, Matter of 41, 58, 65 V. Allen 449, 453, 662, 697, 711 V. Allison 689 a lii INDEX TO CASES CITED. Section Thompson v. Baker 290 V. Brown 251 V. Carper 10 V. Chambers 103 6 V. Culver 400 V. Eramert 5 V. Fischesser 659 V. Lewis 570 V. Marsh 251, 267, 356 V. Rose 245, 246 V. Shelby 579, 589 V. Stevens 245, 539 V. Stewart 490 V. Taylor 566 V. Tolmie 87 a V. Towson 103 V. Wallace 459, 663, 673 Thormeyer v. Sisson 437 a Thorn v. Woodruff 452, 496 Thornburgh v. Hand 185 a, 225 Thomdike v. De Wolf 552, 572, 618, 620 Thome v. JNIatthews 674 a Thoruhill v. Christmas 251 Thornton v. Winter 207 V. Wood 235 Thrasher v. Buckingham 620 Thurber v. Blanck 225 Thurneyssen v. Vouthier 62 Thurston v. Huntington 263, 265 a Tibbetts v. Townsend 63 a Tiernan v. Murrah 222 Tiffany v. Glover 207 V. Lord 115, 125, 185 c Tift V. Griffin 85 Tiller v. Shearer 730 a Tilliughast v. Johnson 453, 496 Tilton V. Cofield 282 a Timmons v. Gamson 193 V. Johnson 663 Tindell v. Wall 453 Tingle v. Brison 133 Tingley v. Bateman 474 Tirrell r. Canada 481 Titcomb v. Seaver 489 Todd V. Shouse 28 Toland v. Sprague 87 Toledo W. & W. R. R. Co. v. INIcXulty 674 a Toll V. Knight 658 a Tomlinson v. Collins 256, 269, 344, 351, 356 V. Stiles 204, 221 V. Warner 732, 733 Toothaker v. Allen 656 Torrens v. Hammond 511 344, 318, 381 Torrey v. Otis Toulmin v. Lesesne Towie t". Lamphere 208 408 Section Towle V. Robinson 381 Towue V. Griffith 487 V. Leach 570 Towns V. Pratt 195 Townsend v. Atwater 549 V. Newell 245 Tracy v. Hornbuckle 516 a V. McGarty 608 Train v. Wellington 292 a, 358 Trapnall v. McAfee 176 Travis v. Tartt 452, 560 Treadway v. Ryan 34 Tread well v. Brown 457 V. Lawlor 71 b Treat v. Barber 199 Tremper v. Brooks 509 a Trentman v. Wiley 342 Trenton Banking Co. v. Haver- stick 37, 93 Trew V. Gaskill 106 Triebel v. Colburn 512 Trieber v. Blacher 196 Tripp V. Brownell 611 Trombly i'. Clark 620, 622 Trowbridge v. Means 622 V. Sickler 103 V. Weir 132 Troxall v. Applegarth 517 Troyer r. Schweiser 711 True V. Emery 263 Truitt V. Griffin 517 Truslow V. Putnam 245 Tubb V. Madding 713 Tucker v. Adams 173 V. Atkinson 251, 508 V. Butts 515 V. Clisby 551 V. Frederick 410 V. Marsteller 612 V. White 325 Tufts V. Carradine 261 V. McClintock 196, 199 Tukev V. Smith 299 Tunnison v. Field 227 Tuustall V. Means 622 V. Worthington 452 Tupper V. Cassell 458, 602 Turbill's Case 708, 722 Turner v. Armstrong 327 a, 334, 342, 545, 589 V. Austin 269 ' V. Collins 10 I'. Fendall 244, 251, 505 V. McDaniel 95 Twining v. Foot 381 Twomblv V. Hunnewell 308 Tyler r. Uhner 294, -302, 309 V. Winslow 603, 667 INDEX TO CASES CITED. liii Tyrell v. Rouiitree Tyson v. Haruer V. Lansing Section 221 116 11, 149 U. Ulrigu. Sinex UUmeyer v. Ehrmann Underbill v. Calhoun Union Bank v. U. S. Bank Union C. M. Co. v. Raht United States v. Arredondo V. Graff V. Howsfate 168 635 516 79 3G a, 113 85 451 a 234 V. Langton 656, 658, 659 V. Robertson 458 V. Vaughan 458, 528 United States Bank v. Merchants' Bank 79 United States Express Co. v. Bed- bury V. Lucas UpdegrafE v. Spring Upham V. Dodge V. Naylor Urie V. Stevens Utley V. Smith 658 e 275 665, 704 341 b, 422 568 245 297 Vairin v. Edmonson Van Alstyne v. Erwine Van Amee /;. Jackson Van Arsdale v. Krura Section Veach v. Adams 248 Veiths V. Hagge 173 Victor V. Hartford Ins. Co. 545 Vienne r. McCarty 4Ul Vierheller v. Brutto 502 Vincent v. Watson 594 Vinson v. Huddleston 224 Vinton v. Bradford 267, 356 V. Mead 187 b Vogle V. New Granada Canal Co. 79 Voorhees v. Bank U. S. 85, 87 «, 89 a 444 102 481 143, 146, 262, 273 Van Buskirk v. Hartford F. I. Co. 605, 608 Vance v. McLaughlin 247 Van Dyke v. The State 36 Van Etten v. Hurst 185 a, 225 Van Kirk v. Wilds 105, 107 Van Loan v. Kline _ 224, 229 Van Loon v. Lyons 75, 115, 125 Vann v. Adams 85 Vanneter v. Grossman 290 Van Pelt v. Littler 196 Van Riswick v. Lamon 509 a Van Staphorst v. Pearce 594, 612 Van Volkenburgh v. Earley 516 Van Winkle v. Iowa I. & S. F. Co. 526 Van Wyck v. Bauer 27 Varnell v. Speer 470 Vason V. Clai-ke 636 Vattier v. Lytle 89 a Vaughan v. Furlong 658/ V. Sturtevant 422 V. Hoagland Vorse V. Phillips Vosburgh v. Welch Vreeland v. Brown W. Wadsworth v. Cheeny V. Clark V. Walliker Waite V. Osborne Wakefield r. Fairman V. Martin Walbridge v. Smith V. Spalding Walcot V. Pomeroy Walcott V. Hendrick r. Keith Walden v. Valiant Waldman v. Broder Waldron v. Wilcox Wales !.-. Clark V. Muscatine Walke V. McGehee Walker v. Detroit G. Co. V. Fitts V. Foxcroft V. Gibbs V. Roberts V. Turner V. Wallace V. Woods Wall V. Wall Wallace v. Barker V. Castle V. Finberg V. Forrest V. Lawyer V. Lodge V. McConnell V. Patterson V. W. H. C. Co. Walling V. Miller Wallis V. Murphy V. Wallace 144, 405 170 a, 176 99 425 113 620 196, 201 496, 506 194 a 527 373 132 254 55 199, 453 589 248 458 183 a 469, 516. 658 c 541, 545 H. & M. R. 518 248 267, 291, 371 557 262, 273, 275 85 662 185 89 b 249 67 178, 182 221, 231 516 52 619, 700, 702 570 612 527 108 107, 136 liv INDEX TO CASES CITED. Section Walser v. Thies 730, 732 a, 745 Walters v. Washington lus. Co. 607, 608 Ward V. Begg 29 V. Hartford 516 V. Howard 27, 262, 273, 275 V. Lamson 484 V. McKeiizie 5, 11, 224, 225 V. Morrisoa 608 r. Whitney 316 Warder v. Baker 655 V. Thrilkeld 69 Wardle v. Briggs 717 Ware v. Goweu 552 V. Russell 222 V. Todd 33 a, 107 Warner, Matter of 50, 400 V. Everett 76, 222 V. Perkins 562, 642, 644, 655, 0U7 V. Webster 448 Warren v. Copelin 719 V. Leland 349, 3(J7 V. Moore 655 Wart V. Maun 517 Warwick v. Chase 10, 15 Washburn v. N. Y. & V. M. Co. 400, 692, 696 Waterhouse v. Bird 345, 358 V. Smith 290 Waterman v. Robinson 367 V. Treat 345 Waters v. Riley 327_a Watkins v. Casdn 675 V. Field 453, 686 V. Otis 490 V. Pope 594 Watson V. Auerbach 420 V. Bagaley 610 V. Kennedy 313 V. McAllister 112, 144, 414 V. Pierpont 40 V. Todd 251, 267, 356, 508 Watt V. Carnes 36 a, 90, 91, 113 Waynant v. Dodson 334 Weathers v. Mudd 233 Weaver v. Davis 509 a V. Puryear 17 V. Wood 296 a Webb V. Holt 216 V. Lea 696 V. McCauley 512 V. Miller 674 f V. Peale 490 V. Steele 379, 381 Webber v. Bolte 552 «, 594 Weber v. Carter 658 h, 704 r. Weitling 65, 89 h Webster v. Adams 672 a Webster v. CoflSn V. Gage V. Harper V. Lowell V. McUaniel V. Randall V. Reid V. Steele Weed V. Dills V. Jewett Wehle V. Butler Weil V. Lank ins V. Silverstone V. Tyler Weirich v. Scribner Welch V. Gurley V. Jamison Weller v. Weller Wellover v. Soule Section 373, 374 461 275, 354, 382 711 624 519 5 457, 545, 547, 663 338, 342 610, 612 185 h, 185 c, 231 225 199 550 659 451 a 222 689 451 h, 561 Wells V. American Ex. Co. 711 V. Bannister 487 V. Brander 425 V. Green 546 V. Mace 684 V. The People 62 V. Stevens 89 6 Welsh V. Joy 213 Wendell v. Pierce 513 Wentworth v. Leonard 373 V. Weymouth 718 V. Whittemore 544, 551, 552 Wescott V. Archer 448 West V. Meserve 295 V. Piatt 287, 674 a Western Railroad v. Thornton 518 Westervelt v. Lewis 5 V. Pinkney 255 a Weston V. Dorr 353 West River Bank v. Gorham 267 Wetherell v. Hughes 374 Wetherill v. Flanagan 583, 659 Wetherwax v. Paine 93 b Wetmore v. Daffin 93 ft, 132 Wetter v. Rucker 711 Weyman v. Murdock 81 Wharton v. Conger 109, 208, 318, 416 Wheat V. P. C. & F. D. R. R. 474 Wheeler v. Aldrich 713 V. Bowen 247, 501 V. Cobb 65 V. Degnan 46, 62, 404 V. Emerson 683, 687 t'. Farmer 34, 98 V. IMoore 247 V. Nichols 222, 426 V. Slavens 122 V. Smith 508 V. Tow use nd 87 a INDEX TO CASES CITED. Iv "Wheeler v. Train AVhidden v. Drake Whipple V. Cass V. Robbins v. Thayer Whitaker v. Sumner White V. Bird V. Casey V. Dunn V. Floyd V. Hawkins V. Heavner V. Jenkins 454 &, V. Ledyard V. Madison r. Morton V. Richardson ' 594 V. Stanley 93 b V. White 454 b V. Wilson 70, 407 V. Wyley 176, 738 Whitehead v. Coleman 499 V. Henderson 696, G97 Whitinsf V. Budd 112, 144, 414 V. Earle 594 Whitlv V. Steakly 63 Whitney v. Brunette 87, 113 V. Butterfield 187, 191 a V. Dean 539 V. Farrar 35 V. Farwell 269, 351, 353, 356, 359, 367, 379, 388, 395 V. Kelly 656 V. Ladd 291, 371 V. Munroe 541, 570, 572 "\Ylritsett v. Womack 327 a Whitten v. Little 604 Whittier v. Prescott 454 a V. Smith 269, 291, 354, 356, 307, 379, 382 AVhitwell v. Bris^ham 32, 35 Wicks V. Branch Bank 576, 579, 607 Wisfall V. Byne 143 Wiggin V. Day 240 V. Lewis 596 Wight V. Hale 287 V. Warner 85, 87, 80 b Wigwall V. U. C. & M. Co. 480, 658 c, 706 Wilbraham v. Snow 291 Wilcus V. Kling 541 Wilcox V. Mills 659, 660, 667 Wild V. Ferguson 516 a Wilder v. Bailey 506, 544 V. Holden 201 V. Shea 465 a V. Weatherhead 453, 455, 674 a Wildes V. Nahant Bank 481 Section Section 245 Wilds V. Blanchard 250 516 Wiley V. Aultman 93 a 274 V. Bennett 91 619, 630 V. Sledge 06 6U5 V. Traiwick 728, 732 237 Wilhehni v. Haffner 579 641 Wilke V. Cohn 102 91, 697 Wilkie V. Hall 216 551 Wilkins v. Tonrtellott 95, 204, 214 5 Wilkinson v. Hall 630 340 ft V. Patterson 332 422 Willard V. Butler 550 487, 541 V. Decatur 509 a 451 a V. Rice 199 291 V. Sheaf e 483 551, 557 248 V. Sturtevant 489, 639 Willet V. Equitable Ins. Co. 474, 478 V. Price 658 e Williams, The Lizzie 551 V. A. & K. R. Co. 607 V. Babbitt 204, 210 a V. Barrow 139 V. Boardman 546 V. Brackett 219 V. Cheeseborough 206 V. Coleman 151 V. Gage 457, 545, 570 V. Housel 461, 659 V. Hunter 732, 736 V. Jones 50^ a, 653, 653 o, 659 V. Kenney • 674 a V. Marston 551, 674 a V. Martin 106 V. Michenor 225 V. Oppelt 216 V. Ponieroy 608 V. Powell 200 V. Reed 490 V. Skipwith 312 a V. Stewart 437, 446 a V. Whoples 245 Williamson r. Beck 81 V. Berry 85 V. Bowie 221 V. Gayle 681 Willing V. Bleeker 222 V. Consequa 664, 665, 7()1 Willis V. Crooker 282 V. Lyman 93 b Wills V. Noyes 732, 733 Wilson V. A:ibright 481, 561, 583, 588, 659 V. Arnold 88, 89 a, 106, ill V. Bank of Louisiana 516 a V. Bartholomew 463 V. Blake 263 V. Britton 75 V. Carson 605, 611 Ivi INDEX TO CASES CITED. Wilson I'. Danforth V. Forsyth V. Lane V. Lewis V. L. C. Man. Co. V. Murphy V. Outlaw V. Ridgely V. Root V. Spring V. Wilson V. Wood Wiltse V. Stearns Wimer v. Pritchartt Winchell v. Allen Winchester v. Cox Windwart v. Allen Wingate v. Wheat Winkler v. Barthel Winsor v. Orcutt Winston v. Ewing '\^'inter v. Drurj' Section 79, 418 221 199 516 27 706 157 493 170, 176 5 15 481 59, 107 520 499 170 a 658 e 193, 251 56 a 159, 167, 176 5G7 611 Wiuterfield v. M. & St. P. R. R. Co. 480 Winthrop v. Carleton 701 Wise V. Hilton 706 Withers v. Fuller 460 Witherspoon r. Barber 602 Wolf V. McGavock 65 V. Tappan , 454 Wolfe V. Crawford 245 V. Dorr 253 a Wood V. Barker 733, 738 V. Bod well 600 V. Buxton 551 V. Denny 282 V. Lake 619 V. Partridge 551, 578, 667, 718 V. Squires 133, 147 V. Wall 635, 636 V. Washburn 336 V. W^ir 236, 727, 732 V. Wells 101 a, 102 Woodbridge v. Morse 464, 506, 515 V. Perkins 607 V. Winthrop 633, 697 Woodbury v. Long 196, 246 Woodfolk V. Whitworth 451 b, 460, 697 Woodhouse v. Cora. Ins. Co. 660 Woodley v. Shirloy 11, 416 Woodman v. Trafton 352 Woodruff V. Bacon 665 V. French 455 n V. Sanders 112 Woodward v. Adams 327 l> V. Tupper 681 r. Woodward 500 Woodworth v. Lemmerman 256 Section Woolfolk V. Cage 18 I'. Ingram 224, 331 Wooster v. Page 480 Work V. Glaskins 665 V. Titus 132 Worthington v. Cary 95 V. Jones 636, 642 Wray v. Gilmore 101a Wright V. Bosworth 465 V. Foord 487, 659 V. Oakey ■340 a V. Ragland 111, 123 V. Rambo 408 V. Rowland 227 a r. Smith 90^,133,221,415 V. Snedecor 36, 96 a V. White 340 b Wrigley, Matter of 59, 60, 63 V. Gever 550 Wyatt's Adm'r v. Rambo 694, 711 Wybrants i'. Rice 588 AYyman v. Hichborn 559 V. Mitchell 85 V. Stewart 658 a Y. Yale V. Saunders 194 a Yarborough v. Thompson 579, 589, 717 Yarbrough v. Hudson 743 Yates V. Bond 89 a V. North 99 Yelverton v. Burton 244 a, 201, 263 Yerby v. Lackland 696 Yocum V. Barnes 328, 336 V. AVhite 711 Yongue r. Linton 535 Young V. Broadbent 282 V. Cooper 35 a, 77 c r. Giegorie 732 V. Grey 140, 144, 414 V. Nelson 54 a V. Pickens 341 c V. Ross 475 V. Walker 271, 292 a, 292 b, 358, 359 17. Young 251, 499, 625 Yourt V. Hopkins 222 Z. Zeigonhagen v. Doe 221, 224, 447 Zerega v. Benoist 95 Zinn V. Dzialvnski 95 Zschocke v. the People 291 Zurcher v. Magee 500, 658 a THE LAW OF SUITS BY ATTACHMENT. CHAPTER I. ORIGIN, NATURE, AND OBJECTS OF TOE REMEDY BY ATTACHMENT. § 1. The preliminary attachment of a debtor's property, for the eventual satisfaction of the demand of a creditor, is unquestion- ably a proceeding of great antiquit}-. Whether the statement of Mr. Locke, in his Treatise on the Law of Foreign Attachment in the Lord Mayor's Court of London, ascribing its origin to the Roman law, be capable of exact verification, need not now detain us.i It is sufficient for the present purpose, that, so far as its use in the United States is concerned, we have no difficulty in finding its origin in the custom of Foreign Attachment of London, which is agreed by all authorities to have a very ancient existence. This, with other customs of that city, has, from time to time, been con- firmed by Royal Charters and Acts of Parliament, and is declared " never to become obsolete by non-user or abuser." It is a singu- lar incident of those customs, that " they may be and are certified and are recorded by w^ord of mouth ; and it is directed that the mayor and aldermen of the city, and their successors, do declare by tlie Recorder whether the things under dispute be a custom or not, before any of the King's justices, without inquest by jury, even though the citizens themselves be parties to the matter at 1 The following passage in Aflam's (si frmulationis cmisd latitaret, Cic. Quint. Roman Antiquities, by Wilson, p. 194, is 19), he was summoned (evocahatur) three probably that to which Mr. Locke refers, times, with an interval of ten days be- as sustaining his position : " It was un- tween each summons, by the voice of a lawful to force any person to court from herald, or by letters, or by the edict of liis own house, because a man's house the praetor ; and if he still did not appear was esteemed his sanctuary (tutissimum (se non sisteret), the prosecutor was put re/itgium et receplacu/um). But if any in possession of his effects." lurked at home to elude a prosecution ' [1] § 3 ORIGIN, NATURE, ETC., OF ATTACHMENT. [CHAP. I. issue ; and being once recorded, they are afterwards judicially noticed." ^ We accordingly find the custom of Foreign Attach- ment certified by Starkey, Recorder of London, as early as 22 Edward IV. to be : " That if a plaint be affirmed in London, before, &c., against any person, and it be returned nihil^ if the plaintiff will surmise that another person within the city is a debtor to the defendant in any sum, he shall have garnishment asrainst him, to warn him to come in and answer whether he be indebted in the manner alleged by the other ; and if he comes and does not deny the debt, it shall be attached in his hands, and after four defaults recorded on the part of the defendant, such person shall find new surety to the plaintiff for the said debt ; and judgment shall be that the plaintiff shall have judgment against him, and that he shall be quit against the other, after execution sued out by the plaintiff." § 2. The custom thus set forth was, it is believed, first treated of in an orderly manner by Mr. Bohun, in a work entitled " Privi- legia Londini : or the Rights, Liberties, Privileges, Laws, and Customs of the City of London ; " of the third edition of which a copy, printed in 1723, is before me ; in which the author remarks : " It may be here observed, that altho' the Charters of the City of London (as they are here recited by 15 Car. IL) do begin with those of William L, yet it must not be understood as if any of the city rights, liberties, or privileges were originally owing to the grants of that prince. For, 'tis evident, the said City and Citizens had and enjoyed most of the liberties and privileges mentioned in the following charters (besides divers others not therein enumer- ated) by immemorial usage and custom long before the arrival of William L" § 3. This custom, notwithstanding its local and limited charac- ter, w\as doubtless known to our ancestors, when they sought a new liome on the Western continent, and its essential principle, brought hither by them, has, in varied forms, become incorporated into the legal systems of all our States ; giving rise to a large body of written and unwritten law, and presenting a subject of much interest to legislatures and tlieir constituents, as well as to the legal profession and their clients. Our circumstances as a 1 Locke on Foreign Attachment, XVI. [2] CHAP. I.] ORIGIN, NATCRE, ETC., OF ATTACHMENT. § 4 nation have tended peculiarly to give importance to a remedy of this character. The division of our extended domain into many different States, each limitedly sovereign within its territory, in- habited by a people enjoying unrestrained privilege of transit from place to place in each State, and from State to State ; taken in connection with the universal and unexampled expansion of credit, and the prevalent abolishment of imprisonment for debt ; would naturally, and of necessity, lead to the establishment, and, as experience has demonstrated, the enlargement and extension, of remedies acting upon the property of debtors. The results of this tendency, in the statute law of the several States, may be discovered by reference to their leading statutory provisions, as found in the Appendix ; while those connected with the judicial administration of the law appear in the succeeding chapters of this work. § 4. In its nature this remedy is certainlj- anomalous. As it exists under the custom of London, it has hardly any feature of a common-law proceeding. At common law the first step in an action, without which no other can be taken, is to obtain service of process on the defendant ; under the custom, this is not only not done, but it was declared b}^ Lord Mansfield, that the very essence of the custom is that the defendant shall not have notice. At common law a debtor's property can be reached for the pay- ment of his debt, onlj^ under a fieri facias ; under the custom, it is subjected to a preliminar}^ attachment, under which it is so held as to deprive the owner of control over it, until the plaintiff's claim be secured or satisfied. At common law only tangible property can be subjected to execution ; under the custom, a debt due to the defendant is attached, and appropriated to the payment of his debt. At common law, after obtaining judgment, the plaintiff is entitled to execution without any further act on his part ; under the custom, he cannot have execution of the garnishee's debt, without giving pledges to refund to the defendant the amount paid by the garnishee, if the defendant, wathin a year and a day, appear and disprove the debt for which the attachment is obtained. In these and other respects the proceeding under the custom has an individuality entirely foreign to the common law. Its peculiar features have in the main been preserved in its more [3] § 5 ORIGIN, NATURE, ETC., OF ATTACHMENT. [CHAP. I. enlarged and diversified development in this country. The most material differences as it exists among us, are, the necessity of notice to the defendant, either actual or constructive ; the direct action of the attachment on tangible property, as well as its in- direct effect upon debts, and upon property in the garnishee s hands ; the necessity for the presentation of special grounds for report to it ; and the requirement of a cautionary bond, to be executed by the plaintiff and sureties, to indemnify the defend- ant against damage resulting from the attachment. Still the remedy is, with us, regarded and treated as sui generis, and is practically much favored in legislation, though frequently spoken of by courts as not entitled to peculiar favor at their hands. § 4 a. Nothing more distinctly characterizes the whole sj-stem of remedy by attachment, than that it is — except in some States where it is authorized in chancery — a special remedy at law^ belonging exclusively to a court of law, and to be resorted to and pursued in conformity with the terms of the law conferring it; and that where, from a conflict of jurisdiction, or from other cause, the remedy by attachment is not full and complete, a court of equity has no power to pass any order to aid or perfect it.^ § 5. Under the custom, and likewise in this country, attach- ment is in the nature of, but not strictly, a proceeding in rem ; since that only is a proceeding in rem in which the process is to be served on the thing itself, and the mere possession of the thing itself, by the service of the process and making proclama- tion, authorizes the court to decide upon it without notice to any individual whatever.^ The original object of the London pro- ceeding was, by attachment of the defendant's property instead of his body, to compel his appearance by sufficient sureties to answer the plaintiffs demand.^ The practice of summoning him at the commencement of the proceeding, if it ever prevailed, was, in all probability, found to interfere with the advantage intended to be given b}- the attachment, and was, therefore, discontinued : but though the defendant is in fact never summoned, still the 1 McPlierson v. Snowdcn, 19 Marj'- brougli, 125; Megce v. Bcirne, 30 Penn. land, 197 ; Lacliland i;. Gareschi', 50 Mis- State, 50; Bray t.-. McClury, 55 Missouri, Bouri, 207 ; Godding v. Pierce, i;] Rhode 128. Island, 5:>2. '^ Ashley on Attachment, 11. 2 Mankin v. Chandler, 2 Brocken- [4] CHAP. I.] ORIGIN, NATURE, ETC., OF ATTACHMENT. § 5 record of the proceedings in the Mayor's court must contain the return of nihiU or it will be erroneous and void.^ All the notice, therefore, which the defendant there has of the proceeding, is derived through the attachment of his property ; and herein is the leading difference between the London proceeding and ours. With us, the writ of attachment is always accompanied or pi-e- ceded by a summons, which, if practicable, is served on the defendant; if not, he is notified by publication of the attachment of his property. If the summons be served and property be attached, the latter, unless special bail be given, is held for the payment of such judgment as the plaintiff may recover, and that judgment is in jyersonam, authorizing execution against any property of the defendant, whether attached or not. If the summons be served, but no property attached, the suit proceeds as any other in which the defendant has been summoned, unaf- fected by its connection with a fruitless attachment. If prop- erty is attached, but there be no service on the defendant, and he do not appear, publication is made, which brings the defendant before the court for all purposes, except the rendition of a j;e?'sona^ judgment against him ; ^ and the cause proceeds to final judgment, but affects only what is attached ; ^ and the judgment will not authorize an execution against any other property, nor can it be the foundation of an action against the defendant ;^ nor can the 1 Locke on Foreign Attachment, 12. tlie defendant by the final judgment of 2 King V. Vance, 46 Indiana, 240. tlie court. But if there is no appearance 3 Kilburn v. Woodworth, 5 Johnson, of the defendant, and no service of 37; Lincoha v. Tower, 2 McLean, 473; process on him, tlie case becomes, in its Westervelt v. Lewis, Ibid. 511 ; Dielps essential nature, a proceeding in rem, the V. Holker, 1 Dallas, 261 ; Chamberlain v. only effect of which is to subject the Paris, 1 Missouri, 517 ; Massey v. Scott, property attached to tiie payment of 49 Ibid. 278 ; Downer v. Shaw, 2 Foster, the demand which the court may find to 277; Maxwell v. Stewart, 22 Wallace, . be due to the plaintiff. 77 ; Miller v. Dungan, 36 New Jersey " That such is the nature of this pro- Law, 21 ; Coleman's Appeal, 75 Penn. cceding in this latter class of cases, is State, 441 ; Fitzsimmons v. Marks, G6 clearly evinced by two well established Barbour, 333; Force v. Gower, 23 How- propositions: First, the judgment of the ard Pract. 294 ; Clymore u. Williams, 77 court, though in form a personal judg- lUinois, 618. ment against the defendant, has no effect ^ In Cooper v. Reynolds, 10 Wallace, beyond the property attached in that 303, the Supreme Court of the United suit. No general execution can be issued States said : " If the defendant appears, for any balance unpaid after the property the cause becomes mainly a suit in per- is exhausted. No suit can be maintained sonain, with the added incident, that tlie on such a judgment in the same court or property attached remains liable, under any other, nor can it be used in evidence the control of the court, to answer any in any other proceeding not affecting the demand which may be established against attached property, nor could the costs in [5] §6 ORIGIN, NATURE, ETC., OF ATTACHMENT. [CHAP. I. plaintiff take judgment for a greater amount than that for which the attachment issued,^ nor for any other cause of action than that stated in the publication. 2 If there be neither service upon the defendant nor attachment of his property, there is nothing for the jurisdiction to rest upon, and any proceedings taken in the cause are coram nonjudice and void \^ even though the statute law of the State expressly authorize a judgment to be rendered against a defendant under such circumstances.^ Another essen- tial difference between the two proceedings is, that while under the custom the defendant cannot appear and defend the action without entering special bail, such is not the case with us. Here it is optional with him to give security for the payment of the debt or not; but in either event he is generally allowed to appear and defend. If he give the security, the same result follows as under the custom, — the dissolution of the attachment, the release of the attached property, and the discharge of the garnishee : ^ if not, the property is the security, and remains in custodv. § G. Under the custom, the only preliminary affidavit to be made by the plaintiff, in order to his obtaining the attachment, that proceeding be collected of defendant out of any other property than that at- tached in the suit. Second, the court, in such a suit, cannot proceed unless the officer finds some property of defendant on which to levy the writ of attacliment. A return that none can be found, is tiie end of the case, and deprives the court of further jurisdiction, though the publica- tion may have been duly made and proven in court." See Westervelt v. Lewis, 2 McLean, 511; Tliompson v. Emmert, 4, Ibid. UG; Chamberlain i'. Faris, 1 Mis- souri, 517; Clark v. Ilolliday, 9 Ibid. 711 ; Steel v. Smith, 7 Watts & Sergeant, 447 ; Kilburn v. Woodworth, 5 Johnson, 87 ; Robinson v. Ward, 8 Ibid. 80 ; Pawl- ing V. Bird, \?> Ibid. Y.yl; I'iielps v. Baker, GO Barbour, 107 ; White r. Floyd, Spcers Eq. Z'A ; Manchester r. McKee, y Illinois (4 Gilman), 5U ; Miller v. Dungan, 30 New Jersey Law, 21 ; Fitz- simnions v. Marks. GO Barbour, 33.'] ; Oakley v. Aspinwall, 4 Comstock, 514 ; Boswell V. Otis, Howard Sup. Ct. 3:;G; D'Arcy r. Ki'tclium, 11 Ibid. 1G5 ; Web- [6j ster V. Reid, Ibid. 4.37 ; Erwin v. Heath, 40 Mississippi, 795 ; Bliss v. Hensty, 61 Illinois, 338 ; Earthman v. Jones, 2 Yerger, 484 ; Moore v. Gennett, 2 Ten- nessee Ch'y, •'575 ; Wilson v. Spring, 38 Arkansas, 181. 1 Post, § 440 a. 2 Janney r. Spedden, 38 IMissouri, 305. 3 Post, § 440 ; Eaton v. Badger, 33 New Hamp. 228 ; Carleton v. Washing- ton Ins. Co., 35 Ibid. 102 ; Hopkirk v. Bridges, 4 Hening & Munford, 413 ; Mil- ler );. Sharp, 3 Randolpli, 41 ; Austin v. Bodley, 4 .Monroe, 434 ; Maude r. Rodes, 4 Dana, 144 ; Hunt v. Johnson, Freeman, 2S2, Johnson ?'. Johnson, 20 Indiana, 441; Ward v. McKenzie, 33 Texas, 297; Jiulah V. Stephenson. 10 Iowa, 403; Morris v. U. P. U. Co., 56 Ibid. 135; Phelps V. Baker, GO Barbour, 107 ; Cochran v. Fitch, 1 Sandtbrd Cii'y, 142; Clymore r. Williams. 77 Illinois, G18; Borders v. Murphy, 78 Il)id. 81. * Penuoyer v. Keff, 05 United Slates, 714. s See Chap. XIIL CHAP. I.] ORIGIN, NATURE, ETC., OF ATTACHMENT. § 7 is, that the defendant is indebted to him in a specified sum. In this country, he is generally required to swear as well to the defendant's indebtedness or liability as to some certain fact desig- nated by statute as a ground for obtaining the writ. Wherever this is requisite, it is the foundation of the exercise of jurisdic- tion through this process, and without it no legal step can be taken. The facts necessary to be sworn to are of great variety, and embrace many different phases of the same general allega- tions ; having relation mainly to the residence of the defendant, and to proceedings on his part to avoid the service of process, or to dispose of his property adversely to his obligations to his creditors, and giving rise to a great variety of questions of gen- eral law and legal practice. It would be interesting to group together the various grounds of attachment established by the different States. Such a resume would exhibit strikingly the degree to which the necessities of the country have led to the enlargement of the sphere of this remedy. Such, indeed, has been the almost uniform tendency of all legislation on this subject ; and it is a noticeable fact, that it has exhibited itself in a more marked degree in the new States than in some of the old. Untrammelled by ancient forms, precedents, and traditions, their legislation has exhibited in this regard, as in others, the facility of adaptation to existing exigencies and circumstances, which characterizes a new people, when free to form, and engaged in the work of forming, their own institutions. Hence, as experience has prompted, the grounds of attachment have been multiplied, until, in some States, there would hardly seem to be much more needed in this respect, unless, as in those of New England, preliminary attachment should be matter of right in every action ex contractu. At the same time the scope of the remedy, as to the causes of action for which it will lie, has been extended, and liberal provi- sion has been made in a number of the States, for proceeding upon demands not due, in cases where a postponement of remedy until their maturity would endanger their collection; — a valu- able measure, destined, probably, to become a part of the attach- ment laws of all our States. § 7. The tendency is not only to widen the sphere, but to enlarge the operation of the remody, by subjecting to attachment interests in, and descriptions of, property not heretofore subject § 8 ORIGIN, NATURE, ETC., OF ATTACHMENT. [CHAP. I. to execution at common law. Under the custom, as before remarked, the attachment readies only the garnishee's debt to the defendant ; while universally, with us, it acts also, by direct levy, on the defendant's tangible property, real and per- sonal. With us, too, generally, equitable interests in real estate may be attached ; and recent legislation in several States author- izes the attachment, both directly and by garnishment, of choses in actioti, and the seizure of books of accounts, and the subjection of accounts and evidences of debt, by collection through a receiver, or other agent of the court, to the payment of the defendant's debt. At the same time there is a more extended disposition manifested to give to garnishment — what it has under the custom — a prospective operation upon effects coming into the garnishee's hands between the time of service on him and the time of filing his answer. § 8. The natural result of the matters thus briefly noticed is to give this remedy a high practical importance, and to lead to a voluminous mass of judicial decisions, extending over a wider surface, and bringing into view a greater variety of legal doc- trines, than would be conjectured by those who have not exam- ined the subject. In relation to it there can, in the nature of our institutions, be no uniform system of statute law ; but not- withstanding the inevitable diversity in this particular, there is a general unity of aim and result ; so that principles and rules of identical import may be — and in numberless instances are — judicially established, under statutes widely differing in details. Indeed, it may be questioned whether there is any other subject of equal extent, in the administration of the law, depending so entirely upon, and so exclusively regulated by, statutory provi- sions, that would exhibit less diversity of judicial decision than is connected with this. It is, therefore, a work of interest, to present in a connected form the emanations of the judicial mind in all parts of our country, in relation to a proceeding which belongs to every system of State laws, and is everywhere resorted to in aid of creditors who, without it, Avould often have no adequate means of enforcing their claims. With these general remarks we proceed to the practical con- sideration of the subject. [8] CHAP. II.] CAUSE OF ACTION. § 10 CHAPTER II. FOR WHAT CAUSE OF ACTION AN ATTACHMENT MAY ISSUE. § 9. By the custom of London all attachments are Gjrounded upon actions of debt.^ And the debt must be of such a nature as will sustain an action at law. Equitable debts, therefore, are not sufficient to ground an attachment upon ; such, for instance, is a legacy, which is recoverable only in the spiritual court or in a court of equity. Dividends due to a creditor from the assignees under a commission of bankruptcy, are also in the same predica- ment, as is all trust property, for the creditor cainiot sue for these at law, but must either petition the chancellor, or file a bill in equity to recover them. The debt also must be due, or it cannot sustain an attachment. Thus no attachment can be made upon a bond, bill, or note, the day of payment whereof is not yet come, nor for a book debt for payment of which time has been given, until such time be elapsed.^ § 10. In this country, except in New England, resort to this process was formerly almost exclusively restricted to creditors ; but now, as an examination of the Appendix will show, the range of cases in which it may be used is. greath' enlarged over almost the entire country. Nevertheless, in the absence of statutory provision allowing attachments to issue in actions founded on tort^ it has been uniformly held, that in such actions it will not lie. Thus, it cannot issue in an action of trover,^ or trespass ;* nor for a malicious prosecution ; ^ nor for assault and battery ; ^ 1 Privilegia Lontlini, 25i. 4 Ferris v. Ferris, 25 Vermont, 100; 2 Ashley on Attacliment, 21, 22. In Tabor o. Big P. C. S. M. Co., U Federal New York it was lield, that tlie remedy Reporter, G36. by attacliment could not be resorted to '^ Stanly v. Otjden, 2 Root, 259; Hyn- in equitable actions. El)ner v. Bradford, son v. Ta3lor, 3 Arkansas, 552 ; Tarbell 3 Abbott Pract. n. s. 248. v. Bradley, 27 Vermont, 535. 3 JVIarshall v. White, 8 Porter, 551 ; 6 Mjnga v. Zollicoffer, 1 Ircdc41 (Law), Hynson v. Taylor, 3 Arkansas, 552; 278; Thompson y. Carper, 11 Humphreys, Hutchinson v. Lamb, Brayton, 231. 512. § 10 CAUSE OF ACTION. [CHAP. II. nor to recover the amount of expenses incurred for medical and surgical services, and loss of time during confinement, resulting from a wound inflicted by the defendant ; ^ nor for damages alleged to have been sustained by the plaintiff, in consequence of a wrongful sale of his property under execution ; ^ nor for dam- ages caused by a collision between two steamboats ; ^ nor for damages sustained by a steamboat running into and destroying a house ; ^ nor to recover from common carriers damages for the loss of a trunk, where the declaration is in tort and not in con- tract ; ^ nor for money stolen by the defendant ; ^ nor for breach of marriage promise ; '' nor for damages for the alleged wrongful and fraudulent act of the defendant, in breaking open a letter intrusted to his care ; ^ nor for alleged fraud committed by the defendant in the sale of personal property;^ nor to recover a loss of profits resulting from the defendant's not selling and investing in a return cargo, a quantity of flour shipped to him ; '^^ nor for the recovery of specific property ; ^^ nor for the destruction by fire of plaintiff's property, caused by the defendant's carelessly and negligently setting fire to neighboring prairie grass ; ^^ nor for the recovery of the statutory forfeiture for taking usurious interest ;^2 nor for slander, under a statute authorizing an attach- ment for torts, trespasses, or injuries actually done to property, real or personal.^* In all such cases, the rule laid down by the Supreme Court of Wisconsin is undoubtedly correct, that though the plahitiff should, in his affidavit for obtaining the attachment, allege a cause of action founded on contract, yet wdienever it appears, either from the declaration or the evidence, that the true cause of action is not of that character, it is the duty of the court to dismiss the suit.^^ 1 Prcwitt V. Carmichael, 2 Louisiana ^ Piscataqua Bank v. Turnley, 1 Miles, Annual, 'J43. 312. 2 Groiner v. Prendergast, 3 Louisiana ' jMaxwell r. McBrayer, Piiillips, 527. Annual, 370. ^ IJaver v. Webster, 3 Iowa, 502. 3 Swagar v. Pierce, 3 Louisiana An- 9 Fellows r. Brown, 38 Mississippi, nual, 435; Griswold v. Sliarpe, 2 Call- 5U. fornia, 17. ^^ Warwick i-. Chase, 23 ^laryland, 154. * Holmes V. Barclay, 4 Louisiana An- " Hanna v. Loring, 11 Martin, 276. nal, 03; McDonald i-. Forsyth, 13 Mis- i- Handy n. Brong, 4 Nebraska, 00. Bouri, 549. See Irish v. Wriglit, 12 " Keed v. Beach, 2 Pinney, 26. Kobinson (La), 503; Hill v. Chatfield, 4 i* Sargeant v. Ilelnibold, Harper, 219; Louisiana Annual, 562. Baune v. Tiiomassin, Martin, n. s. 503. 6 Porter r. Hildebrand, 14 Penn. State, '•'* Elliott v. Jackson, 3 Wisconsin, 049. 129. See Strock v. Little, 45 Ibid. 410; The restriction of the remedy by attach- Coleman's Anpoul, 75 Ibid. 441. nient to creditors is of course dependent [lOJ CHAP. 11.] CADSE OF ACTION. §11 § 11. Before proceeding to the main subject of inquiry, it may- be reauirked, that, in the absence of any statutorj^ provision to the contrary, non-residents as well as residents may avail themselves of the proceeding by attachment.^ And where the remedy is allowed only to residents, and the non-residence of the plaintiff does not appear on the face of the proceedings, the defendant can avail himself of it only by a plea in abatement.^ upon tlie terms of the governing statute ; wliich may be, and in some States are, apparently sufficiently comprehensive to authorize an attachment in an action founded on tort. For instance, in 'New York, under its Code of Procedure, allow- ing an attachment " in an action for the recover]) of money," the question arose whether those words authorized an at- tachment in an action for a wrong ; and, as is the case in regard to many subjects which have come before the courts of that State, we find reported decisions on both sides, with, as yet, no final adjudica- tion by the court of last resort. In 1850, in Hernstien v. Matthewson, 5 Howard Pract. 106, in the Supreme Court, Ed- MOXDS, J. decided that the Code allowed an attachment against a non-resident defendant in every action, whether for a wrong or on contract. In 1859, in Gordon V. Gaffey, 11 Abbott Pract. 1, Hogeboom, J. held tliat an attachment did not lie in an action f(jr setting fire to the barn of the plaintiff, wliereby tlie same, with all its contents, was consumed. In 1860, in Floyd V. Blake, 11 Abbott Pract. 349, Ja.mes, J. sustained an attachment in an action for assault and battery. In 1865, in Sliaffer v. Mason, 29 Howard Pract. 55, 18 Abbott Pract. 455, Ingraham, Sutherland, and Clarke, JJ. decided that an .attachment would not lie in an action of trespass de bonis asportatis. In 1866, the Supreme Court, at General Term, held, that an attachment would not lie in an action founded on tort. Saddlesvene i\ Arms, 32 Howard Pract. 280. Tliis decision was given after the Code of New York had been amended so as to authorize an attacliment " in an action for tiie recovery of the money." Since tliis decision was rendered, the Code has been further amended so as to authorize the remedy " in an action aris- ing on contract for the recovery of money only;" which leaves no room for using it in actions founded on tort. In Ohio, an attachment may issue " in a civil action for the recovery of money," wlien the defendant has " fraudulently or cruni- nallij contracted the debt or incurred the obligation for wliicli suit is about to be or has been brouglit ; " and it was tliere held, that the term " obligation " there is equivalent to liabiliti/, and that an attach- ment would lie in an action for damages for an assault and battery. Sturdevant V. Tuttle, 22 Oliio State, 111 ; Creasser v. Young, 31 Ibid. 57. 1 Woodley v. Sliirley, Minor, 24 ; Ty- son I'. Lansing, 10 Louisiana, 444 ; Posey I". Buckner, 3 IMissouri, 413 ; Graham v. Bradbury, 7 Ibid. 281 ; McClerkin v. Sut- ton, 29 Indiana, 407 ; Mitchell v. Sliook, 72 Illinois, 492; Givens v. Mercliants' Nat. Bk., 85 Ibid. 442 ; Gray v. Briscoe, 6 Bush, 687. In Ward v. McKenzie, 33 Texas, 297, the court said : " It may be assumed that whatever privilege, benefit, or advantage a resident citizen may de- rive from tlie provisional remedy of at- tachment, which has been created by the attachment law of tins State, is equally accessible and available to any citizen of any State of the United States, because the Constitution of tlie United States has declared that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.' All the civil rights and obliga- tions conferred or imposed by the laws of a State upon its own citizens, may be enjoyed and must be submitted to by the citizens of otiier States, wlienever the action of a State tribunal is invoked for their adjustment or enforcement. It is not a matter of mere comity among States, but it is a constitutional guaranty'." 2 Calhoun v. Cozzens, 3 Alabama, 21. [11] § 13 a CAUSE OP ACTION. [CHAP. II. § 12. Who may be regarded as a creditor^ may be often a debatable question. A creditor is defined by a recent writer to be one who has a right to require of another the fulfilment of a contract or obligation.^ Another writer considers a creditor to be one who gives or has given credit to another ; one who trusts another ; one to whom a debt is due : in a larger sense, one to whom any obligation is due.2 Webster defines the word thus: " A person to whom a sum of money or other thing is due, by obligation, promise, or in law." In the Civil Law, he is said to be a debtor, who owes reparation or damages for the non- pei'formance of his contract ; ^ and of necessity he is a creditor wlio has the right to claim such reparation or damages. The word is certainly susceptible of latitudinous construction, and it is not perhaps as important here to arrive at its general meaning, as to ascertain the views of it, and of what constitutes an indebt- edness, which have received judicial sanction, in connection with the resort to attachment. § 13. In New York, where the plaintiff was required to swear that the defendant is indebted to him, the court said it did not follow that the demand is to be so certain as to fall within the technical definition of a debt, or as to be susceptible of liquida- tion without the intervention of a jury. Being indebted is sj'nonymous with owing ; it is sufficient, therefore, if the demand arise on contract. It was therefore held that an attachment would lie in an action founded on a bill of lading, whether the goods shipped were not delivered, or were delivered in a damaged condition.* § 13 a. In Connecticut, where the remedy is confined to " cred- itors," it was held, that it was available for the recovery of a claim for unliquidated damages for the negligence of the defendants in towing a raft of logs from New York to New Haven, through Long Lsland Sound, which the defendants had agreed to tow safely ; whereby the raft was broken up and the logs scattered, and a large part lost, or recovered at a great expense.^ 1 1 Eonvior's Law Dictionary, "83. * Lenox r. Ilowland, 3 Caincs, 323; In 2 1 Rurrell's Law Dictionary, SOL re IMarty, :] Barbour, 220. ' Hunt c. Norris, 4 Martin, 517; 1 ^ New Haven Saw-Mill Co. v. Fowler, Potliier on OMiyations, 169. 28 Conn. 103. [12] CHAP. II.] CAUSE OF ACTION. § 16 § 14. In Pennsylvania, under a statute which, by a strict and literal construction, confined the writ of attachment to cases of debt, the following case arose. The defendant bound himself to deliver to the plaintiff teas of a certain qualit}'', and suited to a particular market ; and on failure to do so, to pay the difference between teas of such quality and such as should be delivered. Teas agreeably to contract were not delivered ; and the plaintiff commenced suit by attachment, swearing that the difference amounted to $4,500. It was held, that tliis was a debt within the meaning of the statute, for which an attachment would lie. " It is not every claim," said the court, " that, upon a fair con- struction of this law, or even in common parlance, can be de- nominated a debt. For, in the first place, the demand must arise out of a contract, without which no debt can be created ; and the measure of the damages must be such as the plaintiff can aver to be due ; without which special bail cannot regularly be demanded." ^ If, upon the facts sworn to, a contract does not appear, or cannot be necessarily implied, an attachment will not lie.2 § 15. In Maryland, under a statute requiring the plaintiff to make oath that the defendant is bona fide indebted to him, it was held, that the term " indebted " was not to be construed in a technical or strict legal sense ; but that where the contract sued upon furnished a standard by which the amount due could be so clearly ascertained as to enable the plaintiff to aver it in his affi- davit, or the jury, by their verdict, to find it, an attachment might issue."^ § 16. In Virginia this case occurred. A. deposited with B., on storage, a quantity of flour, to be redelivered on demand. B.'s warehouse took fire, and, with the flour, was consumed, A. sued by attachment in chancery, to recover the value of the flour. It was objected that the court had no jurisdiction, because the chiim was not a debt ; but the Court of Appeals overruled the objection and sustained the proceeding.^ 1 Fisher v. Conscqua, 2 Washington, " Jacohy v. Gogell, 5 Sergeant & C. C. 382. See Kedwood v. Consequa, Rawle, 450. 2 Browne, 62; Carland v. Cunningliam, ^ Wilson v. Wilson, 8 Gill, 192. See 37 Penn. State, 228. Warwick v. Chase, 23 Maryland, 154. * Peter v. Butler, 1 Leigh, 285. [13] § 19 CAUSE OF ACTION. [CHAP. II. § 17. In Alabama, where the statute used the words " debt or demand," and required the plaintiff " to swear to the amount of the sum due," it was held, that an action might be commenced by attachment, to recover for a breach of warranty of the soundness of a slave ; the damage for the breach of warranty being the value of the slave at the time of the warranty, and a sum capable of ascertainment, and of which the plaintiff might make affidavit ; and the cause of action arising out of contract, and the measure of the damages being ascertained by the law of the contract.^ In the same State, under another provision, authorizing one non- resident to sue another non-resident by attachment, where the defendant is indebted to the plaintiff, either by judgment, note, or otherwise, it was held, that those terms did not extend beyond causes of action for which either debt or indebitatus assumpsit would lie.2 § 18. In Mississippi, where the " creditor " was required " to make oath to the amount of his debt or demand," it was held that an attachment would lie to recover damages for a breach of covenant.'^ § 19. In Louisiana, under a statute which authorized an attach- ment to issue " whenever a petition shall be presented for the recovery of a debt," an action was brought by attachment to recover the value of certain goods shipped on a steamboat, and not delivered according to the terms of the bill of lading ; and the case was considered to be within the statute ; the court hold- ing that any obligation arising from contract, express or implied, either for the payment of money or the delivery of goods, creates a debt on the part of the obligor, for which an attachment may issue, whenever the amount may be fairly ascertained by tlie oath of the obligee.'* In the same State, it was held, that an attachment would lie, in an action by the purchaser against the vendor of a slave, alleged to have absconded from the plaintiff, and to have returned to the vendor, who harbored him and refused to give liim up, to recover the value of the slave, and of his services during his detention, and damages for expenses incurred in demanding Iiim, and for > Weaver i'. Puryear, 11 Alabama, 941. ' Woolfolk v. Cage, Walker, .300. 2 Hazard v. .Jordan, 12 Alabama, 180. * Hunt v. Norris, 4 Martin, 517. CHAP. II.] CAUSE OF ACTION. § 19 counsel fees ; the court holding that the retention of the slave was a violation of the contract t)f sale, and that the responsibility thereby incurred was not diminished by an outrage, perhaps a crime, being superadded to it.^ The law under which the writ was sued out in this case was Art. 242 of the Louisiana Code of Practice, in these words : " The property of a debtor may be attached in the hands of third persons by his creditors, in order to secure the payment of a debt, whatever may be its nature, whether the amount be liquidated or not, provided the term of payment have arrived, and the creditor who prays the attachment state expressly and positively the amount which he claims ; " and Art. 243 requires the creditor to " declare under oath the amount of the sum due him." Under this law an attachment was sus- tained in favor of the owner of a ship, against the owner of a dock, for failure to fulfil a contract by the latter for the services of his dock for the use of the plaintiff's ship.^ In the same State it was held, that an attachment might be sued out, to recover the value of books delivered to the defendant to be bound, and which he failed to return.^ And again, under a statute authorizing an attachment " in every case where the debt, damages, or demand is ascertained and specified," it was decided that attachment would lie to recover damages sustained by the malfeasance of one in the employ of the plaintiff, whose good conduct the defendant had guaranteed. The court in disposing of the matter said: "By the wording of the statute, some cases of damages were to be excluded, but then it is equally clear that some were intended to be included ; and we think this is one of them. To require that the damages should be ascertained, and made specific by the act of the party sued, would be to render the words in the statute useless ; for the moment this liquidation took place, they would cease to be damages, and become a debt. The act, there- fore, contemplated that the sum due should be settled by the oath of the plaintiff in all those cases where he could ascertain it. And the cases in which he can do so, we should consider those where the amount does not depend on an opinion of the wrongs inflicted on his feelings, reputation, or person, but on a knowl- edge of the injuries done to his property." * ^ Crane v. Lewis, 4 Louisiana Annual, ^ Turner v. Collins, 1 Martin, n. s. 369. 320. * Cross v. Richardson, 2 Martin, n. 8. 2 Hyde v. Higgins, 15 Louisiana An- 323. nual, 1. [15] § 22 CAUSE OF ACTION. [CHAP. II. § 20. In Arkansas, where an attachment was allowed when any person " is indebted," it was Reld that the term " indebted " is synonymous with ozving, and that attachment might be main- tained upon an unliquidated as well as a liquidated demand, aris- ing ex contractu, that might be rendered certain. The case was an action for damages for breach of a contract to tow a boat up Red River, and deliver certain loads of corn at certain places specified in the contract,^ § 21. In Indiana, under a statute authorizing attachment for "debts or other demands," it was decided, that a claim for dam- ages for an injary to flour, while in possession of the defendant as a common carrier, and in the course of transportation, was a cause of action for which an attachment would lie.^ § 22. In Michigan, the statute authorizes an attachment, upon an affidavit being made that the defendant is indebted to the plaintiff, and specifying, as near as may be, the amount of such indebtedness, over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment. Under that statute a plaintiff in attachment filed a declaration, counting upon the breach of an express contract for freight of certain vessels, claiming damages therefor, and for demurrage, aftd upon the common counts in indebitatus assumpsit, for the use of said vessels, retained and kept on dunnage, and a quantum meruit count, for use, &c. The court, in considering the question whether the declaration disclosed a cause of action which would sustain an attachment, said : " What is an indebtedness ? It is the owing of a sum of money upon contract or agreement, and in the common understanding of mankind, it is not less an indebtedness that the sum is uncertain. The result of a contrary doctrine would be to hold any liability which could only be the subject of a general indebitatus assumpsit, quantum meruit, or quantum valebant count in a declaration, such an indebtedness as could not be the subject of this remedy by attachment. Witliout fully deciding this point, which is not necessarily raised in this case, we see no reason why a demand arising ex contractu, the amount of which is susceptible of ascertainment by some standard referable to the contract itself, sufficiently certain to enable the 1 Jones V. Buzzard, 2 Arkansas, 415. ^ Bausman v. Smith, 2 Indiana, .374. ' [16] CHAP. II.] CAUSE OF ACTION. § 24 plaintiff, by affidavit, to aver it as near as may be, or a jury to find it, may not be a foundation of a proceeding by attachment. In the present case the contract furnishes such standard, equally as does any contract for goods sold, or work or labor done, with- out express agreement as to price or compensation." ^ § 23. In the cases above cited, where the damages were unli- quidated, it will be observed that the contracts, for breach of which suits were brought, afforded a rule in themselves for ascer- taining the damages, and upon this ground the actions were sus- tained. But where such is not the case, it has been considered that attachment cannot be resorted to ; as will appear in the next three sections. § 24. In the Circuit Court of the United States for the third circuit, a case arose, in which damages were claimed by the owner of a ship, of one who had chartered the ship, for renouncing the charter-party, and refusing to permit her to proceed on the con- templated voyage. In the opinion of the court, dissolving the attachment, it was said : " Whether the plaintiffs can maintain any action upon this charter-party, by reason of the refusal of the defendant to take on board a cargo, and to prosecute a voyage, is a question which has not been considered by the court ; nor is it necessary that it should be decided. For, if an action can be maintained upon it, it still remains to be inquired, By what standard are the damages, wdiich the plaintiffs have sustained on account of the refusal of the defendant to perform the voyage, to be ascertained ? That furnished by the contract was a certain sum per month, during the voyage, to be ascertained at its ter- mination ; but that event never took place ; and consequently no rule can be deduced from this source to fit the present case. This, then, is a case in which unliquidated damages are de- manded ; in which the contract alleged as the cause of action, affords no rule for ascertaining them ; in which the amount is not, and cannot, with propriety, be averred in the affidavit ; and which is, and must be, altogether uncertain, until the jury have ascertained it; for which operation no definite rule can be pre- sented to them." 2 1 Eoelofson v. Hatch, 3 ^Michigan, 277. 560. Sed contra, Redwood v. Consequa, 2 2 Clark I'. Wilson, 3 Washington C. C. Browne, 62. 2 [17] § 26 CAUSE OF ACTION. [CHAP. II. § 25. In New Jersey, the statute required the pLaintiff, in order to obtain an attachment, to make oath that the defendant " owes the plaintiff a certain sura of money, specifying as nearly as he can the amount of the debt or balance." An attachment was obtained in an action of covenant, upon an affidavit that the defendant owed the plaintiff $300, "damages he had sustained by reason of the breach of covenant which the defendant made to the plaintiff and hath broken." The nature of the covenant was not disclosed by the affidavit or otherwise ; and the attachment was not sustained, because the cause of action sounded in dam- ages merely, and those damages were unliquidated, and could not possibly be reduced to any degree of certainty without the inter- vention of a jury. But the court considered that where a cove- nant is for the payment of a sum certain, it might be proceeded on b}^ attachment.^ In the same State, it was decided that attachment would not lie for the recovery of a penalty intended to secure unliquidated damages ; ^ and in Georgia, that it would not in an action for such damages, resulting from a breach of covenant.^ § 26. In Alabama, under that clause of the statute above re- ferred to, which authorized an attachment where the defendant was mdehted. to the plaintiff, the following case arose. The plaintiff alleged that the defendant contracted with him to take certain iron upon a vessel lying at New Orleans and bound for Providence. The iron was in three flatboats which were taken alongside the vessel, and the defendant commenced taking it on boaid ; but he left a quantity of it in the boats and refused to take it, alleging that it would not pack well with the remainder of the freight. One of the boats, containing about forty tons of the iron, of the value of $1,000, sunk, and was totally lost. There was ample time for the defendant to have taken the iron on board his vessel, and its loss was caused by his refusal to take it according to his contract. The court, regarding the cause of action as one for general and unliqui- 1 Jeffery v. "Wooley, 5 Halsted, 123 ; ^ Mills v. Findlay, 14 Georgia, 230. Biirber v. Robeson, 3 Green, 17. It was, however, held otherwise, under a 2 Cheildiclc r. Marsh, 1 Zabriskie, 463; subsequent statute, which is noticed in Hoy D. Brown,! Harrison, 157; Dicker- §27. son V. Sinims, Coxe, 101). See State r. Beall, 3 Harris & McIIenry, 347. [18] CHAP. II.] CAUSE OF ACTION. § 27 dated damages, and not within the terms of the law, dissolved the attachment.^ § 27. The cases cited in the next preceding three sections arose under statutes which contemplated indebtedness as the foundation of the action. But in some States the language which would limit the remedy to cases of that kind has been replaced by more comprehensive terms ; and we will notice the decisions which have been made under laws of that description. In New York, under a law authorizing attachment " in an action arising on contract for the recovery of money only,'' it cannot be resorted to in a proceeding to foreclose a mortgage ;^ nor in an action for breach of marriage promise ; ^ nor in an action for the recovery of damages for the loss by negligence of goods which the defendant undertook, as a common carrier, to convey from Boston to China.'* But a claim for damages upon the breach of a contract by the defendant to purchase sound corn for the plaintiffs, was considered to authorize an attachment ; the breach complained of being that the corn was not sound, and the amount claimed being the difference between that paid and that for which the corn was sold.^ In Minnesota, under a statute authorizing an attachment in an action " for the recovery of mone}'," it may be resorted to in any action, either ex eonti-actu or ex delicto.^ In Ohio, under a statute using the same terms, it was held, that an attachment might be obtained on an obligation to deliver, on and after a certain day, iron metal in payment, at a rate agreed on, for iron ore sold and delivered, and that it might be obtained before the maturity of the obligation ; " and that it might be resorted to in an action by one partner against his co- partner, after the dissolution of the firm, to recover a general balance claimed upon an unsettled partnership account.^ And it was decided there, that an attachment could not lie against the 1 Hazard v. Jordan. 12 Alabama, 180. * Atlantic Mut. Ins. Co. v. McLoon, 2 Van Wyck v. Bauer, 9 Abbott Pract. 48 Barbour, 27. N- s. 142. 5 Lawton v. Kiel, 51 Barbour, 30; 34 3 Barns r. Buck, 1 Lansing, 2G8. And Howard Pract. 465. so in Nortli Carolina, under a statute *^ Davidson j>. Owens, 5 Minnesota, 69. identical with tliat of New York. Price ^ AYard v. Howard, 12 Ohio State, V. Cox, 83 North Carolina, 261. And 158. see Wilson v. L. C. Man. Co. 88 Ibid. 5. « Goble v. Howard, 12 Ohio State 105. [19] § 27 a CAUSE OF ACTION. [CHAP. U. propert}' of a married woman, in an action to charge her separate estate with the payment of notes made by her, because, as no personal judgment could be rendered against her, the action was not " for the recovery of money." ^ In Georgia, under a statute authorizing suits by attachment " in all cases of money demands, whether arising ex contractu or ex delicto,^'' an attachment may be resorted to in an action for breach of a promise of marriage ; ^ and in one for the seduction of plaintiff's daughter.^ The same court decided that it could not be maintained on a note, before it became due, which was pay- able "in notes good and solvent when this becomes due," though the statute authorized an attachment on a " money demand " before its maturity ; it being considered that such a note was not a money demand until after it fell due and remained unpaid.* Under the law of California, authorizing the writ in cases upon "contract for the direct payment of money," it was held, that an undertaking filed l)y an appellant, " that lie will pay all the dam- ages and costs which may be awarded against the defendant on the appeal, not exceeding $300, and that if the judgment appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be paid thereby, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant on the appeal," was a contract for the direct payment of money within the meaning of the law.^ And under the same law it was held, that the official bond of a county treasurer was an obligation for the direct payment of money, on which an attachment might be issued.'' And where a sura of money had been paid upon a consideration which had entirely failed, it was held, under the same statute, that the law implies a contract to refund it, authorizing an attachment." § 27 a. The debt for which an attachment may issue must possess an actual character, and not be merely possible, and dependent on a contingency which may never happen. There- fore, where the plaintiff alleged as a ground of attachment, that 1 Hoover i". Gibson, 24 Oliio State, ^ Hathaway v. Davis, 33 California, ICl. 389. <* Monterey v. McKcc, 51 California, 2 Morton r. Pearman. 28 Georgia, 323. 255. 8 Graves >\ Strozier, 37 Georgia, 32. 1 Peat Fuel Co. v. Tuck, 53 California, * Monroe v. Bishop, 2'J Georgia, 159. 304. [20] CHAP. II.] CAUSE OF ACTION. § 28 he was security upon a draft drawn for the defendant in the sum of 8900, and that the defendant was about to remove himself out of the State, so that the ordinary process of hiw could not be served on him, and that thereby the plaintiff would probably have the draft to pay, or suit would have to be brought for the same in another State ; it was held, that the attachment could not be sustained.! § 28. And though, as in some States, an attachment will lie on a debt not due, yet there must be an actual subsisting debt, which will become due by the efflux of time. Therefore, where suit was brought on the 4th of February, by the drawer against the acceptor of bills of exchange, which had been protested before, but were not taken up by the drawers until some da3's after that day, though on that day an agreement was made by the drawers to take them up ; it was considered that the drawers could main- tain no action until tlie bills were actually taken up, and tliat the completion of the agreement could not relate back to the time it was made, and reinvest the drawers with the title to the bills on the 4th of February .2 And so, where a creditor, for the accommo- dation of his debtor, accepted a bill drawn by the debtor, payable a certain number of days after date, for the amount of the debt, with interest to maturity, and the bill was discounted by a bank, and the proceeds applied to the extinguishment of the original debt ; it was decided that the acceptor was not a creditor of the drawer until the maturity of the bill and his payment of it ; and that his payment of it at maturity could not retroact so as to give validity to an attachment sued out by him before the payment.^ And so, where an attachment was obtained on the 9th of Novem- ber, to recover damages for the non-fulfilment of a contract to deliver a certain amount of cotton " during the succeeding fall,"' 1 Benson v. Campbell, 6 Porter, 455; however, is sustainable only on equitable Taylor v. Drane, 13 Louisiana, 62 ; Har- grounds, under equity jurisdiction, and rod V. Burgess, 5 Robinson (La.), 449. has not, so far as I have discovered, been In Moore v. Holt, 10 Grattan, 284, in a recognized as applicable to a proceeding proceeding by attachment in chancery, at law. authorized by the laws of Virginia, it ^ Blanchard v. Grousset, 1 Louisiana was decided, that a guarantor might Annual, 9G. maintain a bill against the principal ^ Read r. "Ware, 2 Louisiana Annual, debtor, in order to protect himself against 498. See Price r. JNTerritt, 13 Ibid. 526; loss by reason of the debtor's failure, be- Todd v. Shouse, 14 Ibid. 426 ; Hearne v. fore he has actually been subjected to Keath, 63 Missouri, 84. liability as guarantor. This doctrine, [21] § 30 CAUSE OF ACTION. [CHAP. II. it -o-as held void, because the defendant was not then in default, and no claim for damages had accrued.^ § 29. In New York this case arose. A. agreed with B., that if B. would sell him goods on credit, and also guarantee Ins liability to C. for a certain sum, he would ship and consign to B. all the fish he should become possessed of in his business in Nova Scotia, as security for the goods and the guaranty. B. sold him the goods on credit, and became guarantor to C. ; and afterwards A. sent fish from Nova Scotia, but refused to consign them to B.; whereupon, and before the term of credit liad expired, B. ob- tained an attachment against A. It was objected that no cause of action existed until the expiration of the credit on the sale of the goods, and that therefore the attachment should be dis- charged ; but the court held, that the contract to give security was broken, and an action might then be sustained for the breach of it, without any reference to the time of the credit, except that if a judgment were obtained before the credit expired, the court had sufficient equity powers over its own judgments to postpone the collection of the amount of the judgment until the credit should expire, or to vacate it, if the security agreed on should be given.2 § 30. In a case which went up to the Supreme Court of the United States from Louisiana, the following facts were pre- sented. B., of Charleston, South Carolina, being indebted to Z. & Co., of New Orleans, for the proceeds of a cargo of sugar con- signed to him, Z. & Co. drew on him certain bills of exchange, which were accepted for the full amount of those proceeds, and were all negotiated to third persons, and were outstanding, and three of them were not yet due, when B. made an assignment for the benefit of his creditors. Z. & Co., upon hearing of it, brought suit agjainst B. for the full amount of the proceeds of the cargo of sugar, and attached his property. The question was, whether under the law of Louisiana allowing an attachment to be sued out upon a debt not yet due, this attachment could be maintained. The court said : "It is plain to us that there was no debt due Z. & Co. at the time when the attachment was made. 1 Moore v. Dickerson, 44 Alabama, 2 Ward v. Begg, 18 Barbour, 130. 48-3. [22] CHAP. II.] CAUSE OF ACTION. § 32 The supposed debt was for the proceeds of a cargo of sugar and molasses, sold by B. on account of Z. & Co. Assumhig those proceeds to be due and payable, Z. & Co. had drawn certain bills of exchange upon B., which had been accepted by the latter, for the fidl amount of those proceeds ; and all of these bills had been negotiated to third persons, and were then outstanding, and three of them were not yet due. It is clear, upon principles of law, that this was a suspension of all right of action in Z. & Co., until after those bills had become due and dishonored, and were taken up by Z. & Co. It amounted to a new credit to B. for the amount of those acceptances, during the running of the bills, and gave B. a complete lien upon those proceeds, for his indemnity against those acceptances, until they were no longer outstanding after they had been dishonored. " It is true the statute law of Louisiana allows, in certain cases, an attachment to be maintained upon debts not yet due. But it is only under very special circumstances ; and the present case does not fall within any predicament prescribed by that law. The statute does not apply to debts resting in mere contingency, whether they will ever become due to the attaching creditor or not." 1 § 31. In Ohio, under a provision allowing an attachment in certain cases before the debt has become due, it was decided that the holder might proceed in that way against the indorser of a negotiable note ; the court regarding the latter as a debtor within the meaning of the statute.^ § 32. In ]\Iassachusetts, a question arose as to the time when a demand was due, so as to be sued upon. A. accepted bills for the accommodation of B., and paid them on the second day of grace, and on the morning of the third day of grace sued out an attachment against B., to recover the money so paid for his ac- commodation. The defendant contended that the plaintiff could not bring his suit until the expiration of the last day of grace ; but the court, while recognizing the doctrine that an action could not have been maintained on the bills until after that day, yet 1 Black V. Zacharie, 3 Howard, Sup. isiana Annual, 324; Henderson v. Thorn- Ct. 483. See Denegre v. Milne, 10 Lou- ton, 37 Mississippi, 448. 2 Smead v. Chrisfield, 1 Handy, 442. [23] § 34 CAUSE OF ACTION. [CHAP. TI. held that the " payment before the day was good payment at the day," and that the right of action existed at any time on the last day of grace. ^ § 33. Where an attachment is authorized for a debt not due, if the grounds of attachment be peculiar to that case, they can- not be resorted to for the recovery of a debt already due. If with the debt not due there be combined a claim that is due, the attachment will be good as to the former, but not as to the latter.^ If an action be brought as upon a debt past due, and it be so averred in the affidavit for an attachment, and the debt be not in fact due, the attachment should be quashed.^ And if the writ be quashed the whole action falls ; for the sole purpose of authoriz- ing suit on a demand not due is to allow an attachment to issue for it.* § 33 a. In a suit on a debt not due, it is erroneous to enter judgment for the plaintiff before the maturity of the demand.^ § 34. Attempts have been made by one partner to sue another partner by attachment, for alleged balances due on account of the partnership transactions ; and in reference to such cases the following decisions have been had. In Illinois, under a statute authorizing an attachment where " any creditor shall file an affidavit, setting forth that any person is indebted to him, stating the nature and amount of such in- debtedness, as near as may be," it was held, that an action of account might be instituted by attachment, by one partner in a commercial adventure against another. The court remarked: " The law was designed to furnish a creditor with the means of collecting his debt, in a case where he would be unable to do so in the ordinary mode of proceeding, and we can see no reason why it should not be as applicable to actions of account as to any other class of cases. The clahn of a joint-tenant, tenant in com- mon, or coparcener, is just as sacred as that of an}^ other cieditor; and because he cannot resort to the more usual common-law 1 Wliitwcll '•. Brigham, 10 Pick. 117. * Gowan i>. Hanson, 55 ■\\''isconsin,341. 2 Levy V. IMillman, 7 Georgia, 107; ^ Ware v. Todd, 1 Alabama, 109; Danfortli f. Carter, 1 Iowa, 5 1(). Jones i;. Holland, 47 Ibid. 732; Uice v. 2 Cox V. Ik'inhardt, 41 Texas, 591. Jerenson, 54 Wisconsin, 248. [24] CHAP. II.] CAUSE OF ACTION. § 34 actions to enforce his rights, affords no reason why he shoalcl be deprived of the benefit of the attachment act, when he presents a case that would authorize an attachment were he permitted to sue in debt or assumpsit. " As to the sufficiency of the affidavit there can be no question. After setting forth the dealings between the parties, and the nature of the indebtedness^ with great particularity, it alleges that the defendant, by means of the premises, is indebted to the plaintiff in a sum stated, and that the defendant is not a resident of the State. Upon such an affidavit an attachment may prop- erly issue." 1 In Georgia, where a contract was entered into between a freed- man and a landlord, to make a crop for one year ; the landlord to furnish the land and the stock, and the freedman to work the same, and to receive for his labor one-half of the crop made ; and the crop was made and gathered ; and the landlord refused to deliver to the freedman his proportion of the crop ; it was decided that this was not a case of partnership ; that the freedman could make out an account against the landlord for his share of the crop, and enforce the collection of the same by attachment.^ In Louisiana, an action by attachment, by one general partner against another, for an amount alleged to be due, growing out of the transactions of the partnership, cannot be maintained.^ And so in South Carolina,'* and California.^ In Kansas, to authorize one partner to sue another by attach- ment, there must .first have been an accounting and ascertainment of a balance which the defendant had, expressly or impliedly, promised to pay.^ In New York an action was instituted by one against his former partner, and the complaint alleged the former partnership, a dis- solution thereof, an assignment of the plaintiff's interest to the 1 Humphreys v. Matthews, 11 Illinois, but it is no doubt authentic. Mr. Rice's 471. See Brinegar v. GrifBn, 2 Louisiana Digest contains many cases decided in Annual, 154. South Carolina, and nowhere else re- - Hollo way v. Brinkley, 42 Georgia, ported. In that State they are often 226. referred to in the opinions of the Court 3 Levy V. Levy, 11 Louisiana, 581 ; of Appeals as authoritative. Whoever Brinegar v. Griffin, 2 Louisiana Annual, would understand the reason of the ab- 1-54; Johnson v. Short, Ibid. 277. sence of those cases from the Reports, is * Rice V. Beers, 1 Rice's Digest of referred to the Preface to Nott & Mc- South Carolina Reports, 75. This case Cord's Reports. cannot probably be found in any of the ^ Wheeler v. Farmer, 38 California, 203. volumes of the South Carolina Reports, ^ Treadway v. Ryan, 3 Kansas, 437. [25] CAUSE OF ACTION. [chap. II. defendant, and the defendant's agreement to pay the partnership liabilities, &c., and divide the surplus ; that the surplus was large ; that the defendant had applied the assets to his own private use, and refused to render any account to plaintiff ; that a large sum of money was due to plaintiff, hut Tie could not state the amount; and he demanded an account, and that the defendant pay what, upon the accounting, might be found due. Long after the action was instituted, the plaintiff obtained an attachment, upon an affidavit alleging that more than $25,000 was due him from the defendant. A supplementary affidavit stated the amount at 822,000. A motion to discharge the attachment was sustained, because the plaintiff, in stating the grounds of his claim, disclosed that he did not know, and could not know until an account had been taken, what, or in fact whether any thing, was due him ; and that his mere opinion or belief was not sufficient to warrant the granting of the process.^ § 35. The right of a creditor to sue his debtor by attachment, is not impaired by his holding collateral security for the debt. The Supreme Court of Massachusetts once held, that a creditor who had received personal property in pledge for the payment of a debt, could not attach other property for that debt, without first returning the pledge ; ^ but this position was afterwards repeat- edly overruled by that court.^ And a mortgagee of personal 1 Ackroyd v. Ackroytl, 11 Abbott Pract. 345; '20 Howard Tract. 93; Guil- hon V. Lindo, 9 Bosworth, GOl ; Ketchum V. Ketchum, 1 Abbott Pract. n. s. 157. - Cleverly v. Brackett, 8 Mass. 150. 3 Cornwall v. Gould, 4 Pick. 444 ; Beck- with r. Sibley, 11 Ibid. 482; Wliitwell v. Brighain, 19 Ibid. 117. In Taylor v. Clieever, Cray, 140, the court said : "The deci-siou in Cleverly v. Brackett, that a creditor to -whom a debtor has pledged a chattel as security for a debt, cannot, in a suit for the debt, attach other i)roi)erty of the debtor without first returning the pledge, is contrary to all the authorities before and since, and is not to be regarded as law." See Ciiapnian r. Clough, G Vermont, 123. In California an attachment may issue if the debt " is not secured by a mortgage, lien, or pledge, upon real or personal property." Under this law this case arose. A. sold real estate to B., and to secure part of tl'B purchase-money, B. executed to A. promissory notes ;' for the amount of which, under the laws of that State, A. had an equitable lien upon the land. He sued out an attacliment against B. on one of the notes, and B. moved to dis- solve the attaclmient because A. had the equitable lien. In support of the motion, B. claimed that though the conveyance of tlie land was made to him, and his notes were given to secure the purchase- money, yet the purchase was, in fact, made by him for the benefit of C, to whom he immediately conveyed the prop- erty, without receiving any consideration therefor, and the title still remained in C., who had furnisiied the cnsh portion of the i)urchase-money, — the first pay- ment, — and liad paid one of the notes given for the remainder. The court over- ruled the motion, and said : " The policy [26] CHAP. 11.] CAUSE OF ACTION. § 36 a propert}- may waive his rights under the mortgage, and attach the mortgaged property to satisfy the mortgage debt,i even after he has taken possession of it under the mortgage.^ § 35 a. In Illinois a creditor having a judgment against his ' debtor, upon Avhich he has the right to issue execution, may sue by attaclmient upon that judgment in the same court in which it was rendered.'^ § 36. If the cause of action for which the attachment is ob- tained, be one upon which that process might not be legally issued, the defect cannot be reached by demurrer to tlie declaration.^ Indeed, as held in Alabama, the defendant, by demurring, makes it impossible for the court to look at the attachment.^ A motion to dissolve, or a plea in abatement, would be the proper course.^ And no advantage can be taken of the defect after verdict, where the defendant appears and pleads to the merits." Nor can a vari- ance between the affidavit and attachment and the complaint be taken advantage of by demurrer ; ^ but may by plea in abate- ment.^ § 36 a. Where an attachment is obtained on a cause of action not authorizing it, and tlie defendant is not served with process, the proceeding is a nullity, and the court has no jurisdiction of the action, and no subsequent amendment of the pleadings can of the law is, tliat a creditor, liolrling a proceeding against the purchaser before security by way oi 'mortgage, lien, or suing out his attachment." Porter v. pledge, upon real or personal property,' Brooks, .35 Californi;\, 199. shall not resort to the summary process i Buck r. IngersoU, 11 ^letcalf, 226; of attacliment until he has exhausted his Whitney v. Farrar, 51 Maine, 418. security. But it must be a lien of a fixed, - Libby v. Cushman, 29 Maine, 429. determinate character, capable of being ^ Young v. Cooper, -59 Illinois, 121. enforced with certainty, and depending * Cain r. Mather, 3 Porter, 224 ; Jordan on no conditions. If the land has been v. Hazard, 10 Alabama, 221 ; Van Dyke alienated by tiie vendee, it is not in- v. The State, 24 Ibid. 81. cumbent on the vendor to go through a ^ Roberts v. Burke, 6 Alabama, 348. litigation with the purchaser, in order to ^ Jordan v. Hazard, 10 Alabama, 221 ; ascertain whether he is a purchaser for Brown v. Coats, 50 Ibid. 439; Rich v. value, witliout notice, before resorting to Thornton, 69 Ibid. 473. his attacimient. The vendee, by alienat- ^ Redus i-. Wofford, 4 Smedes & !Mar- ing tlie land has not only interposed an shall, .579; Marshall v. White, 8 Porter, obstacle in the way of enforcing the lien, 551 ; Brown v. Coats, 56 Alabama, 439. but has rendered it doubtful whether tlie "^ Odom v. Shackleford, 44 Alabama, lien is not wholly defeated. He cannot 331. compel the vendor to solve this doubt by < Wright v. Snedecor, 46 Alabama, 02. [27] § 37 a CAUSE OF ACTION. [CHAP. n. give the proceedings any vitalitj- under that writ. Such amend- ment merely makes a case authorizing proceedings to acquire jurisdiction, and a new attachment must issue upon the new cause of action set up by the amendment.^ § 37. There can be no doubt that a corporation as well as a natural person may sue by attachment, though the statute may require the affidavit to be made by the plaintiff, without mention- ing any other person by whom it may be made. The law which gives existence to the corporation, and which allows it to sue and be sued, necessarily confers on it the authority to act through its agents in any such matter.^ § 37 a. Where several persons are liable for the same debt, the creditor may proceed by attachment against any one or more of them, in relation to whom any ground of attachment exists, without so proceeding against the others.^ Where a debt is due by a firm, against one member of which there is a sufficient ground for suing out an attachment, but none against the other, it is wholly inadmissible to issue an attachment against the latter."* Where an attachment issues against several defendants it may be levied on the property of either defendant, or on the joint property of all of them.^ 1 Pope r. Hibernia Ins. Co., 24 Ohio Austin v. Bnrgett, 10 Ibid. 802 ; over- state, 481. See Union C. M. Co. i-. Raht, ruling Courier v. Cleghorn, 3 G. Greene, 16 New York Supreme Ct., 208; Watty. 52-3, and Ogilvie v. Washburn, 4 Ibid. Carnes, 4 Heiskell, 532. 548. 2 Trenton Banking Co. v. Haverstick, * Bogartr. Dart, 32 New York Supreme 6 Halsted, 171. Ct., 305. 3 Chittenden v. Hobbs, 9 Iowa, 417 ; ^ Hadley v. Bryars, 58 Alabama, 139. [28] • CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 40 CHAPTER III. ABSENT, ABSCONDING, CONCEALED, AND NON-BESIDENT DEBT- ORS ; DEBTORS REMOVING OR FRAUDULENTLY DISPOSING OP THEIR PROPERTY ; AND DEBTORS WHO FRAUDULENTLY CON- TRACTED THE DEBT OR INCURRED THE OBLIGATION SUED ON. § 38. Attach:ments are generally authorized against absent, absconding, concealed, and non-resident debtors ; and we will now consider the adjudications in relation to these several classes of persons. § 39. Absent debtors. It has never been considered, so far as I have discovered, that mere temporary absence from one's place of residence, accompanied with an intention to return, is a sufficient cause for attachment. Were it so regarded, no limit could be set to the oppressive use of this process. Hence we find that usually the absence must either be so protracted as to amount to a pre- vention of legal remedy for the collection of debts, or be attended by circumstances indicative of a fraudulent purpose. It is often, therefore, expressly provided, that to authorize an attachment on account of absence, the absence must be of such character that the ordinary process of law cannot be served on the debtor. But even where no such qualification exists, no case is to be found justifying an attachment upon a casual and temporary absence of a debtor.^ § 40. In Louisiana, an attachment was taken out against a merchant, who, during the summer, left his store in New Orleans in charge of agents, and went to New York on business, avowing his intention to return in the fall. It was contended that any kind of absence of the debtor from the jurisdictional limits of the State authorized the attachment ; but this view was rejected by the court.2 1 Fuller V. Bryan, 20 Penn. State, 144; 2 "Watson v. Pierpont, 7 Martin, 413. Mandel v. Peet, 18 Arkansas, 236. [29] § 43 DEBTORS, ABSEXT, ABSCONDING, ETC. [CHAP. III. § 41. In New York, the court seemed to lay stress upon the fact that the debtor was out of the reach of the process of law ; and held, that the remedy by attachment was available against an absent debtor, whether absent permanently or temporarily ; and negatived the idea that one might go openly to another State or country, and remain there doing business, but intending to return when his convenience will permit, and by such expressed inten- tion prevent the resort to this remedy .^ § 42. It is by no means easy to determine what absence of a resident will justify an attachment. The Stipreme Court of ]\Iis- souri felt the difficulty, in construing a statute which authorized an attachment where the debtor " has absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him." " While," said the court, " it is not admitted that every casual and temporary absence of the debtor from his place of abode, which, during the brief period of his absence, may prevent the service of a summons, is a legal ground for issuing an attachment against his property, it is diffi- cult to define the character and prescribe the duration of the absence which shall justify the use of this process. It may be asserted, hov/ever, that where the absence is such, that if a sum- mons issued upon the day the attachment is sued out, will be served upon the defendant in sufficient time l)efore the return day to give the plaintiff all the rights which he can have at the return term, the defendant has not so absented himself as that the ordinar}^ process of law cannot be served uj^on him." ^ § 43. In New York, under a statute authorizing an attachment where the defendant " has departed from the State with intent to avoid the service of a summons," a somewhat similar question arose, as to tlie act of departure Avhieh would sustain an attach- ment. Unlike the case in Missouri just referi-ed to, the matter of duration of absence was not involved, but the intent of tlie departure. The defendant openly and publicly went to England on business, making known to his family and his employees his intention to go, and expressing his expectation to return in six "weeks. But he was on the eve of bankruptcy ; and the court 1 Matter of Thompson, 1 Wendell, 43. G57 ; Ellington v. Moore, 17 Ibid. 424. 2 Kinjislnnd v. Worsham, 15 Missouri, See Fitch v. Waitc, 5 Conn. 117. [HO] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 44 lield, that if he left tlie State, though openly and publicly, and intending to transact business abroad and then return, but with a view of having the explosion of his affairs take place in his ab- sence, and of avoiding the importunity and the proceedings of his creditors, the attachment could be sustained.^ § 44. In Pennsylvania, an attachment might issue " where the defendant had absconded, or departed from his abode, or re- mained out of the State, w'ith design to defraud his creditors." A creditor obtained an attachment, on the allegation that his debtor had departed with that design. The defendant returned before the first day of the term of court, and resisted the attach- ment, urging his declaration, before he left, that the object of his journey was to collect debts, due to him in Baltimore and else- where, his leaving his family behind, and his subsequent return, as disproving the alleged intent. But, on the other hand, it was ^ Morgan v. Avery, 7 Barbour, 656. The opinion of tlie court presents the followinif summary of the grounds on whicli the attachment was sustained : " The defendant in this case having con- fessedly departed tlie State, all that is required is for the court to be satisfied tliat his departure was with intent to avoid the service of process. So that if the defendant was on tlie verge of bank- ruptcy, and left the State, though openly and publicly, and with a view of trans- acting business abroad, with a view of liaving the explosion take place in his absence, and of avoiding the importiuiity and the proceedings of liis creditors, it woulfl seem that the case would come within the statute. It is established that his departure was not secret, and that he went to Europe on legitimate business, avowing an intention to return in six weeks. He may not have had an inten- tion to defraud his creditors, and there- fore have left all liis property behind him, except the £500 which was required for his foreign adventure. Still, he may have designed to avoid the service of a summons on behalf of his creditors; and if he had such an intention, the attacli- ment can be sustained. I am inclined to think that such intention is justly infer- able from his embarrassed position; from his impaired credit ; from his attempts to borrow money, so immediately on the eve of his departure ; from his confes- sions of his inability to meet his pay- ments as they became due ; from his leaving behind him unpaid debts that were past due ; from the pains he seems to have taken not to disclose to any of his creditors his intention to go abroad, though lie saw some of them within a day or two of his departure, and after he had taken his passage ; from the tenor of his conversations with them, which looked rather to his continuance at home than to an absence abroad ; and, above all, from the fact that within twenty-four hours after he had sailed, his confidential clerk, whom he had left in entire charge of his affliirs, called a meeting of his creditors. It may be that this latter fact, as well as the circumstance that his clerks, when interrogated as to his where- abouts, gave false or equivocal answers, or professed ignorance, may not be justly imputable to him. But I cannot over- look the fact that the clerks, though afforded the opportunity on this motion, have given no explanation of either of these matters, but leave the inference to be drawn that their behavior was in obe- dience to his instructions, and in further- ance of his intention to let his failure happen, and the winding up of his affairs occur, in his absence." [31] § 46 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. shown, that before his departure he had refused to be seen by his creditors; had left the city clandestinely, after night, to join the Baltimore stage the next morning ; had borrowed three dol- lars on the road ; and had ordered letters to be sent to him, directed to another name. On these facts the court considered that the departure with a design to defraud his creditors was not disproved, and the attachment was sustained.^ § 45. A similar case occurred in Louisiana. An attachment was obtained on the ground that the defendant " had departed from the State, never to return." Afterwards he did return ; and the question was, Avhether his return was conclusive evidence of his intention, when he departed, to return. The defendant showed that he had been a resident of the State for about five years, and carried on business as a merchant ; and that during that time he had been in the habit of absenting himself every year during the sickly season, leaving an agent or clerk to attend to his business. On the other hand, it appeared that the defendant was charged with having, with the aid of one of the tellers of a bank, — the plaintiff, — actually defrauded it of a sum of upwards of sixty thousand dollars. The court admitted that, in the absence of any suspicious circumstances, the de- fendant's return would probably be sufficient to establish the existence, when he left, of an intention to return ; but that the consequences he had to apprehend from the fraud he was charged with having committed, rendered his intention to avoid them by flight so probable, that the mere circumstance of his return did not totally destroy the presumption.^ § 46. The term " absent defendants " received a judicial con- struction in Kentucky, wliere it was held to include only such as were, at the commencement of the suit, actually absent from the State.3 And in South Carolina, under a statute authorizing an 1 Gibson v. McLaughlin, 1 Browne tlie State fonr months." Under this pro- 292. vision this case arose. A. left liis house 2 New Orleans Canal and Banking Co. in Wasliington county, some sixty miles V. Comly, 1 Robinson (La), 2.'51. See from Louisville, on the 18tii of Decem- Reeves i'. Comly, ;5 Ibid. oGo ; Simons v. ber, 1859, with stock lor Mississippi and Jacobs, 15 Louisiana Ann\ial, 425. Louisiana. He expected to ship the 3 Clark V. Arnold, 9 Dana, 305. In stock on board a steamer at Louisville on Kentucky, an attachment is authorized the 20th December, but was unexpect- where the debtor " has been absent from ediy and unavoidably detained at Louis- [32] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 47 attachment against a debtor, " being without the limits of the State," an attachment was quashed, because, when issued, the defendant was in fact within the State, though he concealed him- self to avoid process, and though, by his conduct and conver- sation before his disappearance, he had given good reason to believe tliat he had left the State. i § 47. An interesting case arose in New York, which, though not very fully and definitely reported as to the particular rule deducible from it, may nevertheless be considered as laying- down this doctrine, — that where a particular act, done by a debtor, will authorize an attachment, if coupled with either one of two several intents, and an attachment is obtained on an aver- ment of the doing of the act with one of those intents, it will be sustained by proof of the other intent. The case involved a con- struction of that clause in the Code of Procedure authorizing an attachment where the defendant " has departed from the State with intent to defraud his creditors, or to avoid the service of a summons." Here, it will be noticed, is one act, coupled, dis- junctively, with two several intents. The act alone would not authorize an attachment, but done with either intent, would. An attachment was obtained on an affidavit alleging a departure, with intent to defraud creditors. The defendant moved to set aside the attachment, and adduced evidence to disprove the al- leged intent. The plaintiff gave evidence to sustain the alle- gation of the affidavit. The court held, that it was not necessary to prove the intent as averred, provided the evidence proved the other intent to have existed ; and the attachment was sustained, because the other intent was considered proved. It can hardly ville until the 2-ith, when he embarked, tention of going out of the State, and with his stock, on a steamer bound down does consummate his purpose, and is ab- the Ohio Eiver. He did not return to sent from liis liome, pursuant to such in- Kentuclcy until about the first of the fol- tention, for the period of four months, we lowing May. On and after the 21st of think this should be regarded as an ab- April, several attachments were sued out sence from the State, within the meaning against him. Tiie question was, whether of the code and the intention of the Leg- the four months' absence from the State islature, notwithstanding some unlooked- had elapsed on the 21st of April, which for casualty may have delayed him a few was more than that period after he left days from passing beyond the territorial his house, but less than that after he em- boundary of the State." Spalding v. barked at Louisville. The court consid- Simms, 4 Metcalfe (Ky.), 285. ered the matter at length, and announced i Wheeler v. Degnan, 2 Nott & Mc- its conclusion in these words : " Where Cord, 323. the debtor leaves his home with the in- 3 [33] § 49 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. be questioned that this is a just and sound view of the matter. The designated intents, though severally stated, are very similar in character, and it might be impracticable to state v?-ith cer- tainty, or to prove, which intent was present in the mind of the defendant at the time of departure.^ § 48. Absconding Debtors. An absconding debtor is one who, with intent to defeat or delay the demands of his creditors, con- ceals himself, or withdraws himself from his usual place of resi- dence beyond the reach of their process ; ^ and in order to constitute an absconding, it is not necessary that the party should depart from the limits of the State in which he lias re- sided.3 The Supreme Court of Connecticut remarked: "If a person depart from his usual residence, or remain absent there- from, or conceal himself in his house, so that he cannot be served with process, with intent unlawfully to delay or defraud his creditors, he is an absconding debtor. But if he depart from the State, or from his usual abode, with the intention of again re- turning, and without any fraudulent design, he has not absconded, within the intendment of the law.' Therefore, where a debtor departed from L., his usual place of residence, and went to M., in the same State, where he worked openly at his trade for above three months, without taking any measures to conceal himself; it was held, that while in this situation, he was not, with respect to a creditor in L., an absconding debtor, although his friends and neighbors in L. did not know where he was, and his absence was a subject of conversation among them.* § 49. Since concealment, or withdrawal from one's place of abode, with the intent before mentioned, is a necessary element of absconding, it cannot be said of one who resides abroad, and comes thence into a particular jurisdiction, and returns from that jurisdiction to his domicile, that, in leaving the place which he had so visited, he was an absconding debtor.^ And under a stat- 1 Morgan I). Avery, 7 Barbour, 656. 3 pield r. Adrcon, 7 Maryland, 209 ; 2 In Bennett v. Avant, 2 Sneed, 152, Stouffer v. Niple, 40 Ibid. 477. the Supreme Court of Tennessee said: < Fitch v. Waite, 5 Conn. 117. See "To abscond, in a legal sense, means to Oliver i-. Wilson. 20 Georgia, 642. hide, conceal, or absent one's self clan- ^ Matter of Fitzgerald, 2 Caines, 318; destinely, with the intent to avoid legal Matter of Schroeder, Cowen, G03. process." [34] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 52 ute authorizing an attachment against any person absconding or concealing himself, so that the ordinary process of law could not be served upon him, it was held, that only residents of the State who absconded were within the scope of the law, and that an at- tachment would not lie, for that cause, against one who had not yet acquired a residence there.^ In Alabama, however, upon affidavit that the defendant " ab- sconds or secretes himself so that the ordinary process of law cannot be served upon him," an attachment was sustained, though the defendant was a resident of another State, and was only casually in Alabama.^ § 50. An attachment was taken out on affidavit that the de- fendant had departed the State with the intent of avoiding arrest and defrauding his creditors. Upon its being made to appear to the court that ke left his home to go to another place in the same State to sell some property ; that, previous to his departure, the object of his journey was communicated to his neighbors, and was generally understood ; and that he publicly took his departure and returned within ten days, the attachment was superseded.^ And so, where it appeared that the defendants had not absconded, although from the facts and circumstances the creditor was authorized to say that he believed they had done so.* § 51. The act of abscondnig necessarily involves intention to abscond. Therefore a public and open removal, or a departure unaccompanied with that intention, will not constitute an ab- sconding. jMuch less will such a departure, accompanied with the expressed purpose to return, when there are no suspicious circumstances to the contrary.^ § 52. In showing the true character of a departure, where it is alleged that it was but for a season, with the intention of return- ing, evidence of common reputation in the neighborhood to that effect is inadmissible.^ But in all such cases, what the party said contemporaneously with his departure, or immediately previous 1 Shugart v. Orr, 5 Yerger, 192. * Matter of "Warner, 3 Wendell, 424. - Middlebrook v. Ames, 5 Stewart & ^ Boardman r. Bickford, 2 Aikens, 345. Porter, 158. ^ Pitts v. Burroughs, G Alabama, 733; =» Matter of Chipman, 1 Wendell, 66. Havis v. Taj-lor, 13 Ibid. 324. [35] § 54 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. thereto, as to the point of his destination, the ohject he had in view, and when he expected to return, is a part of the res gestce^ and may be received in evidence as explanatory of his intentions, and, in the absence of opposing proof, might repel the imputation that he was absconding, or otherwise endeavoring to evade the service of ordinary process.^ And so his acts and declarations at the tiipe of, or immediately anterior to, the departure, are good evidence to show the intention to abscond.^ § 53. As the act of absconding is a personal act, it can be alleged only of him who has done it. " A person can neither abscond, keep concealed, nor be absent by proxy." Therefore, where one member of a firm absconded, and a creditor of the firm sued all the partners in attachment as absconding debtors, and one of the defendants pleaded in abatement that he had not absconded, the plea was held sufficient to defeat tiie action.^ But where the affidavit was, that " A. & Co., said firm composed of A. and certain parties unknown to deponent, absconds," it was held, in Georgia, that the attachment could not be dismissed on motion.* § 53 a. The fact that a defendant, against whom an attach- ment has been obtained on the ground of his having absconded, afterwards appears to the action, does not constitute proof that the affidavit alleging the absconding was false. He may have been an absconding debtor when the writ was issued, and have returned afterwards.^ § 54. Debtors concealing themselves. The concealment which will justify an attachment is but a phase of absconding, though sometimes in attachment laws the two acts are set forth sepa- rately, so as to indicate that they are regarded as distinct. More usually, however, they are connected together thus, — "absconds or conceals," or " absconds or secretes ; " in which case they have been regarded, and no doubt rightly, as undistinguishable. There- 1 Pitts V. Biirrnu.. See Kennedy t.-. Morrison, 31 Texas, 207. [98] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 103 where the statute required the affidavit to state that the plain- tiff's claim " is just," it was considered to be a substantial com- pliance with the law to state that '^ the plaintiff is justly entitled to recover." ^ And so, where the law required affidavit that the debt or demand " is a just claim," and this was omitted, but the amount of the debt was stated, and that it was on the defend- ant's note under seal, promising to pay a certain sum at a certain time ; it was held by the Supreme Court of the United States that the attachment could not, for this omission, be set aside in a collateral proceeding.^ So where the statute required the affidavit to state that the defendant " is in some manner about to dispose of his property with intent to defraud his creditors," it was held that the omission of the words "in some manner" did not vitiate the affidavit.3 So, under a statute requiring an affidavit that the defendant is justly indebted to the plaintiff " in a sum exceeding fifty dollars," and that the sum should be specified, a statement of the defendant's indebtedness in the sum of 8300 was held sufficient, without inserting the words, " in a sum exceeding the sum of fifty dollars."^ So, under a statute requiring the affida- vit to state "that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs," an affidavit stating indebted- ness in a given sum over and above all legal set-offs, but omitting the words "as near as may be," was sustained.^ Under a stat- ute requiring the affidavit to state that the indebtedness sworn to " is due upon contract express or implied," it was held in Wis- consin, that the word due was intended, not only to show that the demand arose upon contract, but also to indicate that the time for the payment of the debt had arrived ; and that the omission to aver that the debt was " due upon contract " was fatal, though from the terms of the affidavit it was very clear that it arose from contract.^ This position was, however, after- wards abandoned, and it was held, that an averment that the defendant " is indebted " to the plaintiff was a sufficient affidavit that the debt was due? 1 Gutman v. Virginia Iron Co., 5 West 5 Grover v. Buck, 34 Michigan, 510. Virc^inia, 22. ® Bowen v. Slocum, 17 Wisconsin, 181. ^'lucUow u. Eamsey, 11 Wallace, 581. ■? Trowbridge v. Sickler, 42 Wisconsin, 3 Drake v. Eager, io Iowa, 556. 417. * Huglies V. Martin, 1 Arkansas, 386 ; Hugiies V. Stinnett, 9 Ibid. 211. [99] § 104 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. § 103 a. Where a statute gives an attachment on affidavit that the defendant has done a certain act ivith a certain intent^ an affidavit is vicious which alleges the act, but omits to aver the specified intent. Thus, under a statute authorizing an attach- ment "where the debtor has departed from this State, with the intention of having his effects removed from this State ; " an affidavit that he "has departed from this State and beyond the reach of his creditors," was held bad, because it failed to show the intention specified in the statute, and was not its equivalent.! § 103 h. If the statute authorize an attachment on affidavit that the defendant has done a certain act, attended with a specified result, it is not enough to aver merely that he has done the act, but the specified result must also be averred. Thus, where the ground of attachment was, that "the defendant is about to remove his property out of the State, and that thereby the plain- tiff will probably lose the debt, or have to sue for it in another State ; " and the affidavit set forth as the consequence of the alleged anticipated removal of the goods of the defendant, that " the ordinary process of law cannot be served on him," it Avas held bad. 2 So, under a statute authorizing attachment " when any person shall be an inhabitant of any State, territory, or coun- try, without the limits of this State, so that he cannot be per- sonally served with process," an affidavit was held bad, which averred the inhabitancy in another State, but omitted the aver- ment as to the impossibility of personal service of process.^ So, an affidavit that the defendant " was removing out of the county privately," does not comply with a statute using the words "is removing out of the county privately, or absconds or conceals himself, so that the ordinary process of law cannot be served upon him." * § 104. Uncertainty in the affidavit will vitiate it. Thus, where the law required the affidavit to show tliat the cause of action was founded on contract, and tlie plaintiff did not swear posi- tively to a contract, but stated facts, from which perhaps a jury 1 Crayne i'. Wells, 2 Bradwell, 574. ^ Thompson v. Chambers, 12 Smedes 2 Napper v. Noland, 9 Torter, 218. & Marshall, 488. * Toage V. Poage, 3 Dana, 579. [100] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 104 might infer a contract, and perhaps not ; the affidavit was held insufficient.! And where an affidavit stated that the defendant *' is justly indebted to plaintiff (in a specified sum) for services rendered and to be rendered by deponent, as clerk, part due, and a part of said sum not due ; " it was considered defective, for un- certainty as to what was in fact due.^ So, an affidavit in the following terms was ruled out for uncertainty: "A., plaintiff, states that B., the defendant, is bond fide indebted to hiui in the sum of $2,053.37 over and above all discounts ; and the said A., at the same time, produces the account current which is hereunto annexed, by which the said B. is so indebted ; and the said A. likewise states that he hath drawn on the said B. for the sum of $1,500, and also for the sum of §52,223.10, which drafts, though not due, the said A. understands from the said B., and verily believes will not be paid, and further, that the latter draft for $2,223.10 hath never been accepted by the said B., and the said A. hath therefore allowed no credit or discount for said drafts. He further states that B. informed him some time ago, that he would be entitled to charge against said A.'s account, for some loss that he expected would accrue in the sale of certain flour on their joint account ; no account has been exhibited stat- ing the amount of such loss, and therefore he hath allowed said B., in stating his account, no credit." ^ So, under a statute au- thorizing an attachment where the debtor " is about fraudulently to remove, convey, or dispose of his property or effects, so as to hinder or delay his creditors," an affidavit was held vicious for uncertainty, which averred that the plaintiff " has good reason to beUeve, and does believe, that the defendant is about fraudu- lently to remove his property, convey or dispose of the same, so as to hinder or delay this deponent." ^ So, an affidavit by a plaintiff's attorney that "to the best of his knowledge and be- lief" the indebtedness exists, and that the debtor resides out of this State, was held to be ambiguous and bad ; for the phrase "to the best of his knowledge and belief" might qualify both propositions.^ 1 Jacobyr.Gogell, 5 Sergeant fcRawle, Annual, 920. See Espey v. Heiden- 450 ; Qiiarles v. Robinson, 1 Chandler, 29 ; heinier, 58 Texas, 662. 2 Pinney, 97. See Robinson u. Burton, 5 ^ Munroe v. Cocke, 2 Cranch, C. C. Kansas, 293. 405. " Friedlander v. Myers, 2 Louisiaca * Merrill v. Low, 1 Pinney, 221. s Neal V. Gordon, 60 Georgia, 112. [101] § 106 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. § 104 a. The leaving of a blank in the part of an affidavit which was intended to state the ground of attachment, so that thereby the fact is not alleged, — as, for instance, where the affi- davit reads, " and the said . . . resides without the limits of this State," — is fatal to the attachment.^ But the omission of a word, which is manifestly a clerical mistake, and can be well supplied in construction, does not vitiate the affidavit ; as, where, in alleging the defendant's indebtedness, the word " is " was omitted before the word " indebted," it was held that without that word the affidavit obviously meant to affirm indebtedness. ^ § 105. Surplusage in an affidavit, not inconsistent with the substantial averment required by statute, will not vitiate it. Thus, where the person making the affidavit stated sundry acts of the defendant, and closed with these words : " affiant further saith he believes the facts above stated are true, and that said defendant is, by the means above stated, concealing his effects so that the claims aforesaid will be defeated at the ordinary course of law ; " which averment was in compliance with the law ; it was held, that the previous unnecessary statements did not viti- ate the affidavit.^ So, where the affidavit stated that " the defendant resided out of the State of Louisiana, having acquired no lecal residence in the State ; " it was held tliat the statement of the reason for considering him a non-resident, did not vitiate it."^ But if the surplusage be of such character as substantially to impair the main allegation of the affidavit, the whole will thereby be vitiated.^ § 106. All the elements of positiveness, knowledge, informa- tion, or belief, conjointly or separately, required by statute, should appear in the affidavit, or be substantially included in its terms, or it will be bad. Thus, if a fact is required to be sworn to in direct terms, the law is not complied with by a party's swearing that he is " informed and believes," ^ or that he verily 1 Black V. Scanlon, 48 Georgia, 12. 33 Mississippi, 190; Autcr v. Steamboat '^ Buclianan v. Sterlinp, G3 Georgia, J. Jacobs, ?A Ibid. 209. 227. See Foran v. Jolinson, 68 Mary- * Farley v. Farior, 6 Louisiana Annual, land, 144. 725. 8 Spear v. King, 6 Snicdes & Marshall, ^ Emmett v. Yeigb, 12 Ohio State, 276. See Van Kirk v. Wilds, 11 Barbour, 335. 520; Edwards r. Flatboat Blacksmith, •* Deuprce r. Eisenach, 9 Georgia, 508 ; [102] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 106 believes,! or that he " has reason to apprehend and does apprehend and believe "2 the fact to exist. And under a statute authoriz- ing an attachment " where there is good reason to believe " the existence of a particular fact, an affidavit that " it is the plaintiff's belief" that the fact existed, was held insufficient: he should have stated that he had good reason to believe and did believe it.3 Under a law requiring the party to swear that a certain fact did not exist " within his knowledge or belief," an affidavit was held bad, which failed to state the want of his belief.'^ And so, where the party was required to swear ^ to the best of his knowl- edge and belief," and he swore only to the best of his belief.^ And so, where he was required to swear that he " verily believes," and he swore " to the best of his knowledge and belief."^ And so, where he was required to swear that he " believes the plain- tiff ought to recover," and he swore that " he thinks " he ought to recover.^ But where the affiant was required to state that the facts are within his personal knowledge, or that he is informed and believes them to be true, a positive oath of the facts was held sufficient, though he did not add that he had personal knowledge of them, or believed them to be true ; it being considered that the positive oath implied both.^ And so, under a statute requiring an affidavit " showing " the existence of a certain fact, it was held, that an affidavit of such fact, as the affiant " verily believed," was good ; which was, in effect, to decide that the party's belief was a suffi- cient " showing," to fill the terms of the statute.^ Under such a statute it is not necessary, in setting forth the ground of the attachment, to use the very words of the statute, provided the affidavit contain language fully equivalent, or clearly " showing " the ground specified or intended. The statute prescribes the fact which is to be shown, not the words in which the " showing " is to be made.!*^ Ex parte Haynes, 18 Wendell, 611 ; Cad- * Cobb v. Force, 6 Alabama, 468. well V. Colgate, 7 Barbojar, 253 ; Dyer v. ^ Bergh v. Jayne, 7 Martin, n. s. 609. Flint, 21 Illinois, 80 ; Archer v. Claflin, ^ stadler v. Parmlee, 10 Iowa, 23. 31 Ibid. 306 ; Williams v. Martin, 1 Met- ^ Rittenhouse v. Harman, 7 West Vir- calfe (Ky.), 42; Wilson v. Arnold, 5 ginia, 380. Michigan, 98. ^ Jones v. Leake, 11 Smedes & Mar- 1 Greene v. Tripp, 11 Rhode Island, shall, 591. 424. 9 Trew v. Gaskill, 10 Indiana, 265; 2 Brown v. Crenshaw, 5 Baxter, 584. McNamara v. Ellis, 14 Ibid. 516. 3 Stevenson v. Bobbins, 5 Missouri, i" Creasser v. Young, 31 Ohio State, 18 ; Hunt v. Strew, 39 Michigan, 368. 57. [103] § 107 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. Under a statute requiring an affidavit" showing," among other things, " the amount which the affiant believes the plaintiff ought to recover," an affidavit stating positively that a certain sum was due from the defendant to the plaintiff, was considered to comply substantially with the statute, though there was no allegation of the affiant's belief that the plaintiff ought to recover. ^ § 106 a. The strictness with which compliance with the law in the framing of the affidavit may be exacted, was illustrated in a case in Texas, under a statute requiring that the affidavit, after setting forth the ground of attachment, should " further state that the attachment is not sued out for the purpose of injuring or harassing the defendant." An attachment was quashed because the affi- davit said " this attachment is not sued out for the purpose of injuring and harassing the said defendant." The appellate court sustained the action of the court below, on the ground that the language of the statute embodied two distinct requirements : jir%t^ that the plaintiff should swear that his purpose was not to injure the defendant, in the sense of inducing a damage, loss, or detri- ment to him ; and seco7id, that he should swear that his purpose was not to harass, " that is, weary, jade, tire, perplex, distress, tease, vex, molest, trouble, disturb, the defendant." Said the court : " Such being, as we conceive, the meaning of the statute, to comply with its requirement the affidavit must show that the attachment was not sued out for the purpose of either injuring the defendant or of harassing him. The affidavit in question was that the writ was not sued out for both the one and the other purpose. It does not follow the language of the statute, nor are the statements in it equivalent to what is required. It is not inconsistent with the facts stated, namely, that ' this attachment is not sued out for the purpose of injuring and harassing the said defendants,' that tlie plaintiff had the purpose of doing the one or else the other. Perjury in having falsely stated that the pur- pose was to do either of those two things couid not be assigned upon such an affidavit." ^ § 107. While it is in all cases advisable to follow strictly the lan- guage of the statute, yet if the words of the affidavit are in sub- 1 Sleet V. Williams, 21 Ohio State, ^ Moody v. Levy, 58 Texas, 532. 82. [104] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 107 stantial compliance with the terms of, or necessarily and properly imply the case provided for by, the statute, it will be sufficient.^ The jurisdictional fact need only to be set forth with substantial accuracy, without negativing every possible conclusion to the con- trary,^ Thus, where the law authorized an attachment, when the debtor " is about to convey, assign, remove, or dispose of any of his property or effects, so as to defraud, hinder, or delay his creditors ; " an affidavit alleging that the defendant was " about to convey his property so as to hinder or delay his creditors," was held equivalent to alleging fraud, and that therefore it was not necessary to use the word " defraud." ^ Where the cause for which an attachment might issue was, that " he resides out of this State," an affidavit that the defendant " is a non-resident," was considered sufficient.'^ Where the statute authorized an attach- ment upon an affidavit that the defendant is a "non-resident," an affidavit that he " is not now an inhabitant of this State " was sustained.^ Where the language of the statute was, '" that the debtor so absconds that the ordinary process of law cannot be served on him," an affidavit that the debtor " hath absconded so that the ordinary process of law cannot be served on him," was considered to comply substantially with the law.^ An affidavit that the defendant " is about removing," was decided to be in conformity to the statute which provided for an attachment where the debtor "is removing." " Where the statute gave an attach- ment when the debtor " is removing or about to remove hiraseK or his property beyond the limits of the State ; " and suit was brought against the owner and master of a steamboat, alleging that he was " about to remove the said steamboat beyond the limits of this State ; " it was considered that, however defective the alle- gation might be, in stating the defendant to be about to remoTe only a single piece of property, yet that it was equivalent to stat- ing that he was about to remove himself, since, as he was master of the boat, if he removed the boat, his relation to her necossarily involved his own removal.^ Where the statute required the affidavit to state " that the defendant is about to remove himself and his effects so that the claim of the plaintiff will be defeated," 1 Van Kirk v. Wilds, 11 Barbour, 520. 6 Wallis v. "Wallace, G Howard (Mi.), - Franklin v. Claflin, 40 Maryland, 24. 254. 3 Curtis V. Settle, 7 Missouri, 452. " Lee v. Peters, 1 Smcdes & Marshall, * Graham v. Ruff, 8 Alabama, 171. 503. 5 Wiltse V. Stearns, 13 Iowa, 282. 8 Runyan v. Morgan, 7 Humphreys, 210. [105] § 107 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. a statement " that the defendant will remove himself and his eflfects beyond the limits of the State, before the plaintiff's claim could be collected by the ordinary course of law, and that he is transferring and conveying away his property, so that the claim of the plaintiff will be defeated, or cannot be made by the regular course of law," was held to be a substantial compliance with the law.i Where an affidavit stated that " A., B., and C, merchants and partners, trading and using the name and style of A. & Co., are justly indebted to the plaintiff in the sum of $5,460, and that the said A. & Co. reside out of this State ; " and a motion was made to dismiss the attachment, because the affidavit did not state that the individuals constituting the firm of A. & Co. resided out of the State ; the affidavit was held sufficiently certain, because when a partnership is spok-en of by its partnership name, and said to reside or not to reside in a particular place, the meaning is presumed to be, that the members composing the partnership reside or do not reside in that place.^ Where the statute required an oath that " the defendant is about to remove from the State, so that the ordinary process of law cannot be served on him," an affidavit that he is " about to abscond himself and his property out of the State, so that the process of law cannot be served on him," was considered as equivalent to the assertion that he is about to remove himself and property out of the State privately, and as substantially within the requirement of the statute.^ Where the statute required the affidavit to state " the amount of the sum due,"' and the plaintiff swore that the defendant was " really indebted " to him in a certain sum, it was held, that the expression conveyed the idea of a debt actually due and payable, and was sufficient.* Where, in enumerating the cases in which an attacliment would lie, one was " when the debtor is about leaving permanently the State," and in a subsequent part of the same statute, in relation to the affidavit, the party was required 1 Dandriflge r. Stevens, 12 Smedes & sets, and that the same is due upon con- Marsliall, 723. tract, express or implied, or upon judg- 2 Cliambers v. Sloan, 19 Georgia, 84. ment ; " the Supreme Court of Michigan 8 Ware v. Todd, 1 Alabama, 199. held, that the words is due refer not only 4 Parmele v. Johnston, 15 Louisiana, to tlie existence of the indebtedness, but 429. Where the law required the affi- to its being due and payable at the time davit to state "that the defendant is the affidavit is made. Cross r. McMaken, indebted to the plaintiff, and specifying 17 Micliigan, 511 ; Mathews v. Dens- the amount of such indebtedness, as near more, 43 Ibid. 401. as may be, over and above all legal off- [100] CHAP, v.] AFFIDAVIT FOR ATTACH3IENT. § 107 to swear that " the debtor is on the eve of leaving the State for- ever ; " it was held, that the latter requirement was fulfilled by an affidavit declaring that "the defendant was about leaving the State permanently." ^ Under a statute giving attachment " when a debtor is concealing or about removing his effects so that the claim of a creditor will be defeated," an affidavit that a debtor " is about removing from the State, or is so concealing his effects as to defeat the creditor's claim," was held sufficient.^ Under a statute authorizing an attachment where the debtor " is about to remove his goods out of this State," an affidavit stating that the defendant "had removed part, and was about to remove the remainder of his goods and effects from this State," was consid- ered as complying vrith the law.^ Where an attachment might issue when " any person hath removed, or is removing himself out of the county privately, or so absconds or conceals himself that the ordinary process of law cannot be served on him," an affidavit that the defendant " was removing himself out of the county privately," was held sufficient, without the addition of the words "so that the ordinary process of law cannot be served.""* Under a statute using the phrase " absconding or concealing himself or his property or effects," an affidavit that the defendant " is con- cealing his property and effects," was adjudged sufficient.^ An allegation that the defendant " is absconding," was held to he- sufficient under an act using the words " he absconds ; " and an allegation " that they are removing their property to be removed beyond the limits of the State," was considered substantially equivalent to an allegation that they are causing their property to be removed beyond the limits of the State.^ Where the statute authorized an attachment when a debtor " has converted or is about to convert his property inta money or evidences of debt with intent to place it beyond the reach of his creditors," an affidavit that " the defendant had already disposed of and assigned the notes attached, by pledging them for advances, and that she will further assign said notes and convert them into money with the intent to place them beyond the reach of the petitioner, who is creditor," was considered a substantial compliance with the 1 Sawyer v. Arnold, 1 Louisiana An- * Bank of Alabama v. Berry, 2 Hum- nual, .315. plireys, 443. 2 Commercial Bank v. Ullman, 10 ^ Boyd v. Buckingham, 10 Humphreys, Smedes & Marshall, 411. 434. 3 Mandel v. Peet, 18 Arkansas, 230. <= Kennon v. Evans, 36 Georgia, 89. [1U7J I 108 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. law.i Under a statute authorizing an attachment "when the debtor is about fraudulently to dispose of his property," an affi- davit which substituted " effects" 2 or " goods "^ for " property" was deemed sufficient. § 107 a. If the literal following of the words of the statute would make an affidavit upon which perjury could not be assigned, it is held in Wisconsin that the affidavit is bad. Thus, where the law authorized the issue of an attachment upon affidavit that the defendant "has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal ant/ of his property with intent to defraud his creditors," and the affidavit was iu the pre- cise words of the law, it was considered bad.* § 108. Numerous cases of insufficient affidavits are reported. It is not without advantage to present them here. In doing so, as will be seen, no attempt is made at systematic arrangement, but they are given in the order they were met with. Under a statute authorizing attachment, where " the debtor is removing out of the county privately," an affidavit that he "intends to re- move" is not sufficient.^ So, where an attachment was author- ized when the debtor " absconds," and the affidavit was that he " has absconded." ^ So, where the ground of attachment was " that any person hath removed, or is removing himself out of the county privately ; " and the affidavit said that the defendant " is about to remove himself out of the county, so that the ordinary process of law cannot be served upon him."'^ So, where the statute gave an attachment when "the debtor is not resident in the State," and the affidavit was that the defend- ant "is not at this time within the State." » So, an affida- vit " that the defendant has left the State never to return," does not comply with a statute requiring an averment that he is "about to remove his property out of the State."^ A statute authorized an attachment upon an affidavit that "the debtor is 1 Frere v. Perret, 25 Louisiana Annual, 6 Mantz v. Hendley, 2 Ilening & Mun- 500. ford, 308. 2 Free V. Ilukill, 44 Alabama, 197. « Levy v. Millman, 7 Georgia, 167; 3 Hafley v. Patterson, 47 Alabama, Brown r. McCluskey, 20 Ibid. 577. 271. '' Wallis V. Murphy, 2 Stewart, 15. * Miller v. Munson, .".4 Wisconsin, 679. ^ Croxall r. Ilutchings, 7 Ilalsted, 84. See Moody i;. Levy, 58 Texas, 632. ^ Millaudoa v. Foucher, 8 Louisiana, 682. [108] CHAP, v.] AFFIDAVIT FOR ATTACHMENT, § 108 either on the eve of leaving the State permanently, that he has left it never again to return, that he resides out of the State, or that he conceals himself in order to avoid being cited." An affidavit that the defendant "attempted to depart from the State permanently, and that he concealed himself so as to avoid being cited to appear and answer the demand of the plaintiff, and that he is about to remove his property out of the State," was consid- ered insufficient; because, in regard to the departure and con- cealment, it referred indefinitely to the past, making no allusion either to the present or future, and was too vague to form the legal foundation of an attachment.^ Under a statute authorizing an attachment where the defendant " has departed from the State with intent to defraud his creditors, and to avoid the service of a summons," an affidavit that " the defendant is absent, so that the ordinary process of law cannot be served on him," was held fatally defective.2 Under a statute authorizing an attachment, where the debtor "hath removed himself out of the county privately, so that the ordinary process of law cannot be served on him," an affidavit alleging the removal, but omitting the word " privately," was held bad.^ An affidavit that the defendant " is about to ab- scond," was decided not to comply with a statute authorizing an attachment where the debtor "absconds or conceals himself;" or with one using the terms, "shall be absconded or concealing himself;"* or with one using the phrase "hath absconded."^ Where attachment was authorized when the debtor "is removing out of the county privately," an affidavit that he " hath removed," is bad.^ Under a statute using the words "is privately removing out of the county, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him," an affidavit that the defendant had "either left the county and common- wealth, or so absconds himself that the ordinary process of law cannot be served upon him," was held insufficient.'^ Where the statute required the affidavit to state that the defendant "had not resided in the State for three months immediately preceding the time of making application for the attachment," and the affidavit was that he " had not resided there for three months 1 New Orleans v. Garland, 11 Louisi- * Bennett v. Avant, 2 Sneed, 152. ana Annual, 438. ^ Lewis v. Butler, Kentucky Deci- 2 Love V. Young, 69 North Carolina, sions (Sneed), 290. 65. 6 Hopkins v. Suttles, Hardin, 95, note. 8 M'CulIoch V. Foster, 4 Yerger, 162. "^ Davis v. Edwards, Hardin, 342. [109] § 108 a AFFIDAVIT FOR ATTACHMENT. [CHAP. V. immediately preceding the date of the affidavit," and the affida- vit was dated two days before the attachment was applied for, it was held insufficient,^ In a proceeding against several de- fendants as non-residents, an affidavit stating that " they are not all residents " of the State in which the writ is sought, is indeii- nite and insufficient, as clearly implying that some of them do reside there.^ Where the statutory ground of attachment was, that the defendant " is not a resident of or residing within this State," an affidavit that he " is not a resident of tliis State, so that the process of this court cannot be served upon him," was held insufficient.^ Under the same statute, an affidavit that the defendant "is not a resident of this State," was held bad.* Where the statute authorized an attachment where " a debtor is on the eve of leaving the State forever," an affidavit that the affiant " verily believes and has just grounds to apprehend that the defendant may depart from the State permanently," is in- sufficient.^ Under a statute requiring an affidavit that the defendant " is removing out of the district privately, or absconds or conceals himself, so that the ordinary process of law cannot be served upon him," an affidavit that he " is removing or is about to remove out of said district, so that the ordinary process of law cannot be served upon him," was held bad.^ Under a statute giving an attachment when the debtor " is about fraudulently to dispose of his property," an allegation that the plaintiff « has reasons to believe, and does believe, that the defendant will con- vey and dispose of his groceries and his articles in his said grocery, in order to defraud his creditors," was considered insuf- ficient.7 And so, under the same statute, where the allegation was " that the defendants, in conveying their property, will en- deavor to defeat the collection of complainant's debt ; that they have avoided, and, as complainant believes, they intend, by future and fraudulent conveyances and transfers, to evade and avoid payment of his said debt." ^ § 108 a. In probably every State where an affidavit setting forth grounds of attachment is required, the writ is authorized 1 Drew V. Dequintlre, 2 Douglas, 9.3. '' Tvoding v. KiJge, 14 Louisiana An- '•2 Powers V. Hurst, .'5 Blackfonl, 220. nual, :!(>. y Lane v. Fellows, 1 Missouri, 251. "^ Alien v. Fleming, 14 Richardson, lOG. * Alexander v. Haden, 2 Missouri, 187. ' Jackson v. Burke, 4 Ilciskell, (ilO. 8 McHaney v, Cawthorn, 4 Ileiskell, 508. [110] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 108 a where a debtor is "about" to do some particular act. The meaning attributable to " about," in that connection, was dis- cussed by the Supreme Court of Mississippi, which said : " What is the meaning of the terms ' about to remove ' ? ' About ' — does that imply the next hour, or day, or week, or month ? Does the statute convey the idea that necessarily the act must be done within any definite space of time ? The implication is quite strong that the ' removal ' will shortly occur, but no more definiteness and precision is set forth than the word ' about ' imports. Among the definitions or senses in which the word is used, given by lexi- cographers, are ' near to,' ' in performance of some act,' ' con- cerned in,' ' engaged in.' It is an ordinary word of no artificial or technical signification, and should receive the rendering which is given to it in common parlance. If the debtor is engaged in the act, or is near to the performance of the act of removal, if he entertains the purpose and is making preparations to carry it out, then the creditor is entitled to the writ. It would be hurt- ful in practice to attempt to declare precisely what is implied in the terms ' about to remove.' For experience would show that many meritorious cases would fall within the intendment of the remedy, which might be excluded by a rule laid down in advance. We think it wiser and safer in the administration of practical jus- tice, to leave each case, as it arises, to be governed by its own special facts." Influenced by these views the court held it error to refuse an instruction, " that the jury may infer the purpose to remove, at the date of the attachment, from the previous expres- sions of such design, and the acts of the debtor ; and it is not necessary that the defendant purposed immediate removal, if the evidence showed that the design existed, and his actions pur- posed to carry that design into execution, at some short time thereafter, and as soon as he had prepared his affairs for removal, and without paying his debts." ^ This subject was viewed differently by the Supreme Court of Tennessee, under a statute authorizing an attachment when the debtor is " about fraudulently to dispose of his property ; " and the allegation was that the plaintiff " has reasons to believe, and does believe, that the defendant will convey and dispose of his groceries and his articles in his said grocery, in order to defraud his creditors." This allegation was considered not to comply 1 Myers v. Farrell, 47 Mississippi, 281. [Ill] § 111 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. with the Law, and the court thus expressed itself: "These words ' about fraudulently to dispose of his property,' import an exi- gency by which the creditor's debt is in peril of immediate loss unless this extraordinary remedy is allowed to him. Not an act which may peradventure be done at some future time, but a fraudulent act on the very eve of consummation. The mere opinion of the complainant that the defendant will do a fraudu- lent act, does not import that he is about to do it, or that the act is aljout to be done, but that it will be done at some future and indefinite day. The law requires the allegation of an act, not an intent, — an act which, though not yet consummated, is presently to be done. . . . The word 'about,' in the sense of the attachment laws, must be taken in its common acceptation as defined by lexi- cographers, 'near to in action, or near to in the performance of some act.' We hold that to authorize an attachment on the ground that the defendant is about fraudulently to dispose of his property, the charge in the affidavit, if not in the words of the statute, must imj^ort that the defendant is on the eve of such fraudulent disposition of his property ; and we are of opinion that the charge that the defendant tvill dispose of his property in order to defraud his creditors, is not sufficient to authorize the issuance of an attachment."^ § 109. The fact that tivo affidavits of the same import aj^pear in the record, will not invalidate the attachment. The second will be disregarded.^ § 110. In an action against two joint debtors, if the affidavit be insufficient as to one of them, it will not authorize an attach- ment against the property of both.^ § 111. It is proper that an affidavit should be made as near as practicable at the time of the institution of the suit ; but it is believed to be a general practice to allow attachments to issue on affidavits made some time before the issue of the writ. In South Carolina, where the law required the affidavit to be made at the time of filing the declaration, it was decided, that so constant 1 Jackson v. Burke, 4 Ileiskcll, 610. 3 Hamilton v. Knight, 1 Blackford, 2 Wharton v. Conger, 9 Sniedes & 25. Marshall, 510. [112] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 111 and uniform had been the practice to the contrary, that it onglit not to be contested or varied. "It will be seen at once," said the court, " that unless a party is present to make the affidavit at the filing of the declaration, a foreigner, or even one of our own countrymen, who should accidentally be absent from the State, might be deprived of the advantage accruing under the attach- ment act." ^ And in Missouri it was held, that the lapse of nine or ten days between the date of the affidavit and the issue of the writ would not sustain a motion to quash. The affidavit alleged the non-residence of the defendant, and it was urged that the fact, though true when sworn to, may have ceased to be so when the writ was obtained ; but the court said, that if such were the case, it should be taken advantage of by plea in abatement which would put in issue the truth of the affidavit at the time the writ issued.2 And in Kansas, where the ground of attachment was that the defendants had fraudulently contracted the debt sued on, a delay of eighteen days in issuing the attachment after that on which the affidavit was made, was held admissible, since the srround was one which having once occurred was not a matter subject to change, and therefore must have been as true when the writ issued as when the affidavit was made."^ In Illinois it was held, that the affidavit need not be filed at the time it was made, but may be within a reasonable time there- after, and what is a reasonable time must depend on the circum- stances of each case. Said the court : " Where the person making the affidavit resides in the county in which the suit is brought, less time would be reasonable than where he resided in a different county ; and in the latter case less than where he resided in a different State. In such case a reasonable time should be allowed within which to transmit the affidavit to the place where it is to be used." In this case the plaintiff resided in the county in which the suit was brought, and allowed eleven days to elapse after making the affidavit before he filed it ; and the court held the time unreasonable.* If in any case there be such delay as fairly to induce the presumption that the process of the court is abused, or used oppressively, or that the ground 1 Creagh u. Delane, 1 Nott & McCord, 6 Texas, 379; Wright v. Ragland, 18 189; Wright u. Ragland, 18 Texas, 289. Ibid. 289. 2 Graham v. Bradbury, 7 Missouri, ^ Adams v. Lockwood, 30 Kansas, 373. 281. See O'Neil v. N. Y. & S. P. Mining « Foster v. Illinski, 3 Bradwell, 345. Co., 3 Nevada, 141 ; Campbell v. Wilson, 8 [113] § 112 AFFIDAVIT FOK ATTACHMENT. [CHAP. V. of attachment may not exist when the writ is sued out, the whole proceeding may, on motion, be set aside. Unless, however, there are these strong features to warrant this peremptory disposition of the writ, the resort should be to a plea in abatement.^ In Michigan, however, under an act requiring the affidavit to state that the defendant " does not reside in this State, and has not resided therein for three months immediately i^rececling the time of making application for such attachment,''^ it was held, that an affidavit made the day before the attachment issued was bad ; ^ and so of an affidavit under an act which used in that connection the words " immediately preceding the time of making such affi- davit.'"^ Under each act it was decided that the affidavit must be made on the day that the attachment issues. § 112. The mode of defeating an attachment on account of defects in, or the omission to make, an affidavit, varies in differ- ent States. The most usual mode is by motion to quash or dis- solve the attachment. This motion is in the nature of a plea in abatement, and, if successful, its effect is the same.* In Alabama and North Carolina, however, the only way to reach such defects is by that plea.^ Whichever mode is adopted, it should be re- sorted to i« limine; for after appearance by the defendant and plea to the action, it is too late to take advantage of defects in the preliminary proceedings ; they will be considered as waived, unless peculiar statutory provisions direct otherwise.^ And if the defendant give a bail bond for the payment of whatever judgment the plaintiff may recover, he cannot thereafter plead 1 McClannlian v. Brack, 40 Mississippi, 4 Jones, 241 ; Burt v. Parisli, Alabama, 24G ; Campbell I'. Wilson, G Texas, 379; 211; Bishop r. Fennerty, 40 ]Mississi])pi, Wright V. Kagtand, 18 IbiJ. 289. 570; Woodruff v. Sanders, 18 Wisconsin, 2 Drew V. Dequindre, 2 Douglass, 93. 161; Blackwood v. Jones, 27 Ibid. 498; 8 Wilson V. Arnold, 5 Michigan, 98; Fairfield r. Madison Man. Co., 38 Ibid. Fessenden v. Hill, Ibid. 242. 346 ; McDonald v. Fist, 00 :Missouri, 172. 4 Watson V. McAllister, 7 Martin, 3G8. But in Kentucky the Court of Ajjpeals ^ Lowry y. Stowe, 7 Porter, 48-3; Jones held, that a motion to discharge the at- V. Pope, Alabama, 154; Burt v. Parish, tachment was well made during the prog- 9 Ibid. 211; Kirkman v. Patton, 19 Ibid, ress of the trial, and after most of the 02; Garmon v. Barringer, 2 Devereux & testimony had been given to the jury; Battle, 502. and remarked, " We do not see how a •^ Garmon v. Barringer, 2 Devereux & motion of this sort could well come too Battle, 502; Stoney v. McNeill, Harper, late, as the court, even upon final deci- 150; Watson v. McAllister, 7 Martin, sion, sliould vacate the attachment if it 308; Enders v. Steamer Henry Clay, 8 were improperly issued." Taylor v. Robinson (La.), 30; Symons v. Northern, Smitii, 17 B. Monroe, 530. [114] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § H^ in abatement the insufficiency or illegality of the affidavit.^ But it is held, that a defendant's appearance, by attorney, to move for the dismissal of an attachment, and to except to the jurisdiction of the court, is not such an appearance as may be construed into a submission to the jurisdiction.^ If, however, with the appearance for the purpose of making that motion, the defendant combine a motion to review and set aside the judgment because it was ren- dered upon insufficient evidence, that goes to the merits of the action, and is a full submission to the jurisdiction, and a waiver of all objections to the process.^ And so if the defendant appear, and have the case put at the foot of the docket.'* And if a de- fendant appear, and deny the allegations of a defective affidavit, and treat it as if it were legal in its terms, and go into a trial of the issue so made, and thereby get all the benefit that he could have had if the affidavit had been in strict conformity to law, and the result of the trial be adverse to him, he cannot obtain a reversal of the judgment because of the defect in the affidavit.^ In reference to the matter of the defendant's appearance to an attachment suit, this case occurred in Illinois. Suit by attachment was brought against a foreign steamship company, as a corporation, and service was had on the company's agent, and garnishees were summoned. The company appeared by counsel, and pleaded nul tiel corporation. Thereafter the plain- tiff had leave to amend, and did amend his declaration, by insert- ing the names of certain individuals, as partners doing business under the name by which the corporation was sued : and against them he took an alias summons and writ of attachment. No service of the summons was had, but under the attachment the original garnishees were summoned again. No new affidavit was filed, showing the indebtedness and non-residence of the substi- tuted defendants, nor did they appear after the amendment, and judgment in personam was taken against them, on which they sued out a writ of error. In the appellate court it was con- 1 Hill !-. Harding:, 93 Illinois, 77; See 498; Crary r. Barber, 1 Colorado, 172; Barry r. Foyles, 1 Peters, 311 ; Huff v. Graham v. Spencer, 14 Federal Reporter, Hutchinson, 14 Howard Sup. Ct., 580; 603. ^VZ con/ro, Wiiiting (\ Budd, 6 Mis- Payne V. Snell, 3 Missouri, 409; Dierolf souri, 443; Evans v. King, 7 Ibid. 411. V. Winterfield, 24 Wisconsin, 143. 3 Anderson v. Coburn, 27 Wisconsin, 2 Bonner v. Brown, 10 Louisiana An- 558. nual, 334; Johnson f. Buell, 26 Illinois, * Orear y. Clousrh, 52 Missouri, 55. 66; Blackwood v. Jones, 27 Wisconsin, & llyon v. Bean, 2 Metcalfe (Ky.), 137. [115] § 113 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. tended that the appearance of the defendants to the action in its original shape conferred jurisdiction, and authorized a personal judgment against them ; but this position was overruled ; the court holding that the appearance to the action, as against the corporation, could not be considered an appearance after the amendment ; and the judgment was reversed.^ § 113. As we have seen, a defective affidavit cannot be amended unless the law expressly authorize it ; ^ but where it does authorize it, such an affidavit is not void, but only voidable by a direct proceeding to have it set aside or quashed. If it con- tain the names of the parties, and specifies the amount of the indebtedness, and avers a statutory ground for issuing the writ, however defectively any of those points ma}'- be stated, it may be amended. But if it in no way refers to the i:)arties, or fails to fix any amount of indebtedness, or to state any statutory ground for suing out the writ, it is not amendable, but void.^ In some States the quashing or setting aside of an attachment for defect in the affidavit is prohibited, if a sufficient affidavit be filed. In such case it is error to quash the proceedings, unless an opportunity be given the plaintiff to amend, and he fail to do so.* The proper order to be made by the court is, that the pro- ceedings be quashed, unless tlie plaintiff, within a designated time, file a sufficient affidavit. A judgment dissolving the attachment and giving leave to amend, is inconsistent, and may be reversed.^ If the statute provide only for the amendment of defects of form in the affidavit, the omission therefrom of a material aver- ment cannot be supplied by amendment.^ Under no power to amend can the entire omission of an affidavit be so supplied ; for an amendment presupposes the existence of an affidavit, in a de- fective form." If when the attachment issues the affidavit be without date and not sworn to, the officer issuing it has no authority after- wards to amend it by allowing the party to sign and swear to it, 1 Inman v. Allport, 65 Illinois, 540. Bonds, post, § 147 ; Palmer v. Boslicr, 71 •■2 Ante, § 87. North Carolina, 201. 8 Booth r. Recs, 26 Illinois, 45; Moore ^ Graves v. Cole, 1 G. Greene, 405. V. Mauck, 79 Ibid. "01. 6 Hall v. Brazelton, 40 Alabama, 406; * Bunn V. Pritcdiard, 6 Iowa, 56 ; Watt 46 Ibid. 359. I'. Carnes, 4 Ileiskell, 532. See analo- 7 Greenvault v. F. & M. Bank, 2 Doxig- gous cases in regard to Attachment lass, 498. See McUeynolds v. Neal, 8 Humphreys, 12. [116] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. §113 and inserting a date, without issuing a new writ.^ But where the clerk dated his certificate to the affidavit " June 6," when it ought to have been "July 6," the court, finding by the evi- dence that it was a mere clerical error, allowed him to amend the certificate by substituting the latter date.^ If an affidavit be so defective that the writ issued upon it is void, no amendment can give validity to the writ, except as between the parties to the suit ; it cannot cut off intermediate rights acquired by third persons in the property attached.^ This doctrine was, in Kentucky, extended to a case where the writ was not void, but only irregular, in having been issued upon a defective affidavit.* In amended affidavits the allegations must relate to the time of suing out the attachment ; if they refer only to the existence of the ground for attachment when the amendment is made, they will not sustain the writ.^ 1 Watt V. Games, 4 Heiskell, 532. See Pope V. Hibernia Ins. Co., 24 Ohio State, 481 ; Union C. M. Co. v. Raht, 16 New York Supreme Ct. 208. 2 Anderson v. Kanawha Coal Co., 12 "West Virginia, 526. 3 Whitney v. Brunette, 15 Wisconsin, 61. 4 Bell V. Hall, 2 Duvall, 288. 5 Crouch V. Crouch, 9 Iowa, 269; Wadsworth v. Cheeny, 10 Ibid. 257 ; Rob- inson V. Burton, 5 Kansas, 293. [117] 114 ATTACHMENT BONDS. [CHAP. VI. CHAPTER VI. ATTACHMENT BONDS. § 114. It is the lawful right of every man, who believes that he has a just demand against another, to institute a suit and en- deavor to obtain the proper redress. If his belief proves to be unfounded, his groundless proceedings may possibly cause a very serious injury to the defendant ; the mere assertion of a serious claim at law being capable, in some circumstances, of affecting materially one's standing and credit. But to treat that as a legal wrong which consists merely in asserting a claim which cannot satisfactorily be established, would be plainly impolitic and un- just. The failure to sustain it might possibly have come from the death of a witness or other loss of testimony, from false evi- dence, from a mistake of law in the judge, from misconduct in the jury, from any cause rather than fault in the plaintiff himself. To compel him, as the penalty for instituting a suit he cannot sus- tain, to pay the costs of a defence is generally all that is just, and is sufficient to make persons cautious about instituting suits which they have reason to believe are baseless.^ These views apply to the case of an attachment regularly issued by a court of competent jurisdiction on sufficient legal grounds. On common- law principles, if an attachment so issued should afterwards be dissolved, either because the action failed, or because, in a con- test on the merits, the grounds upon which the attachment was obtained were found unsustainable, the defendant could have no recourse against the plaintiff for damages for the seizure of his property, unless the law required the plaintiff, in order to obtain attachment, to give a bond or undertaking for the payment of such damages. In the absence of such a requirement the defend- ant has no remedy for such damages, unless the conduct of the 1 Cooley on Torts, 180. [118] CHAP. VI.] ATTACHMENT BONDS. § 114 h plaintiff was such as to give ground for an action for malicious or vexatious prosecution. ^ But inasmuch as the resort to the rem- edy by attachment is easily hable to abuse, and would oftentimes be productive of serious injury to the defendant, even when there was no malice or improper motive on the part of the plaintiff, laws have been enacted in many of the States requiring a plaintiff, before obtaining an attachment, to execute a bond, with secu- rity, for the indemnification of the defendant against damage by reason of the attachment. The terms of such instruments vary, but that is their usual scope. Sometimes, in order to protect defendants who do not appear to the action, a clause is added in the condition, that the plaintiff shall refund to the defendant any money recovered by means of the attachment, which was not justly due to him. This is merely giving, at the institution of the suit, what, by the custom of London, the plaintiff is required to give at its termination, in order to obtain execution against the garnishee. § 114 a. It might be regarded as hardly open to question, that each Legislature has a right to require such a bond or not, at its mere discretion ; but in Nebraska this was disputed. There, the plaintiff is required to give this bond in every case of attachment, except against a foreign corporation or a non-resident of the State. A non-resident, against whom an attachment had issued, moved to discharge it on the ground that no bond had been given ; basing his motion on Sec. 2 of Article IV. of the Consti- tution of the United States, which provides that " the citizens of each State shall be entitled to all privileges and immunities of citizens of the several States." This, it was claimed, was " in- tended to prevent such invidious discriminations against non- residents " as that of allowing attachments against them without giving bond, when it was required in cases against residents. The court overruled the motion.^ § 114 h. This bond may be given by a corporation plaintiff, and its authority to give it will be presumed to exist as an in- cident to the ordinary power of suing and being sued, which 1 Day V. Bach, 46 New York Superior mont, 486 ; Lexington & 0. R. R. Co. v. Ct. 460. See Palmer v. Foley, 71 New Applegate, 8 Dana, 289. York, 106 ; Sturgis v. Knapp, 33 Ver- 2 Marsh v. Steele, 9 Nebraska, 96. [110] § 116 ATTACHMENT BONDS. [CHAr. VI. pertains generally to incorporated companies.^ And where the board of supervisors of a county are by law authorized to sue and be sued in all matters in which the county may be interested, they may institute a suit by attachment on behalf of the county, and give the bond required by the statute ; which will bind the sureties, and sustain the attachment, even though it be not binding on the county .^ § 115. Where the statute requires a bond to be given before the attachment issues, a failure to give it is fatal to the suit, un- less the law authorize the defect to be cured ; and the omission may be taken advantage of by the defendant, either upon a motion to dismiss, or in abatement,^ but not upon demurrer to the com- plaint."* Great strictness has been manifested on this point, and without doubt very properly ; for if the officer " could dispense with the requisites of the law, for a part of a day, why might he not for a whole day, or many days, and at last the whole be ex- cused by the answer that the defendant was still secured, and might make the plaintiff responsible, wlio might be amply al)le to discharge the damages recovered, although no bond was executed at all ? " ^ And the omission to give the bond is not cured by the deposit, in lieu of it, of a sum of money with the officer who issued the attachment, unless the statute authorize such a substitution.^ § 116. In Mississippi, the statute declares that an attachment issued without bond is void, and shall be dismissed ; and the courts of that State have carried out the law rigidly ; holding that the attachment is absolutely void ; '' that the want of a suffi- cient bond cannot be cured by filing a proper one after the suit is brought ;S that the absence of a bond is not remedied by the 1 Bank of Augusta v. Conrey, 28 Mis- v. Lord, G5 Ibid. 310 ; Bradley i'. Kroft, sissippi, GG7. 19 Federal Reporter, 295. 2 State V. Fortinberry, 54 Mississippi, * Alexander v. Purdue, 30 Arkansas, 816. 359. 3 Bank of Alabama i-. Fitzpatrick, 4 5 Hucheson v. Ross, 2 A. K. Marshall, Ilumplireys, 311; Didier ?-. Galloway, 3 349. Arkansas, 601 ; Kellogg r. Miller, Ibid. ^ Bate v. McDowell, 48 New York Su- 408; Davis v. Marshall, 14 Barbour, 90; perior Ct. 219. Kelly V. Archer, 481 bid. 08; Benedict v. "' Ford v. Ilurd, 4 Smedes & Marshall, Bray, 2 California, 251 ; Lewis v. Butler, 083. Kentucky Decisions (Sneed), 290; Ste- ^ Houston v. Belcher, 12 Smedes & vcnson v. Bobbins, 5 Missouri, 18 : Van Marshall, 514. Loun r. Lvons, 01 New York, 22 ; Tiffany [120] CHAP. VI.] ATTACHMENT BONDS. § IIT appearance of the defendant and his pleading to the action ; i and that a judgment against a garnishee who has answered under an attachment issued without bond is void,"'^ and no bar to a sub- sequent action against him by the aMachment defendant for the same debt.^ In Kentucky, where the bond was required to be in double the sum to be attached, and the statute declared that every attachment issued without such bond being taken should be illegal and void, the strict rule was applied, in cases where the bond was below the required amount ; and the attachment was, on writ of error by the defendant, declared void.* In South Carolina, however, so great strictness does not prevail. There the statute declares the attachment void when issued without bond ; but the courts have construed the law to mean voidable only, and held that the attachment is good until declared void on pleading.5 In Ohio, wdiere the statute provides that "the order of attachment shall not be issued by the clerk until there has been executed in his office an undertaking," &c., it was held, in an action where title to real estate, obtained through an at- tachment issued without such undertaking having been filed, was brought in conflict with a title obtained through a sale under ex- ecution, that the attachment was not void for want of the filing of the undertaking.^ § 116 a. Whether the bond was in fact given before the writ issued is, it seems, not conclusively determined by the dates merely of the respective instruments ; but the fact may be shown, that though the writ bears date anterior to the bond, yet its date was a mistake, and that the bond was filed before the writ issued.'^ § 117. But though an attachment sued out without sufficient bond having been taken, should be considered absolutely void as to the defendant, yet it will, unless the defect appear on the face of the writ, justify an officer in making a levy under it. It was so held in Kentucky, where as stated in the last section, the court, 1 Tyson v. Hamer, 2 Howard (Mi.), * Martin v. Thompson, 3 Bibb, 252; 669. Samuel v. Brite, 3 A. K. Marshall, 317. 2 Ford V. Woodward, 2 Smedes & Mar- 5 Camberford v. Hall, 3 :McCord, 345. shall, 260. 6 OTarrell v. Stockman, 19 Ohio State, 3 Ford V. Hurd, 4 Smedes & Marshall, 296. 683. 7 Snetling i\ Bryce, 41 Georgia, 513. [121j § 120 ATTACHMENT BONDS. [CHAP. VI. on writ of error by the defendant, held the attachment void in such case.i This doctrine is certainly correct as thus applied ; but would not be, if the law required the writ to state that a bond was given, and it did not state it. § 118. But though an officer executing the writ under such circumstances is not liable as a trespasser, yet the party who causes the writ to issue without giving bond, and the officer who issues it, are both so liable to the defendant.^ And in Kentucky, under a statute which declared that " the order of attachment shall not be issued by the clerk until there has been executed, in his office, by one or more sufficient sureties of the plaintiff, a bond," &c., it was said by the Court of Appeals, that the clerk is bound at his peril to know that the surety tendered is sufficient.^ § 119. As in the case of the affidavit, the bond must appear in the record of the action ; * but, unless required by statute, the omission to recite in the writ that a bond was given, will not vitiate the attachment.^ § 120. When it is required that a bond shall be approved by a clerk of court, it is not necessary for him to indorse his approval thereon ; that is but evidence of the fact, which may be other- wise proved. ° If he receives and files the bond, he is estopped from afterwards denying that he approved it.^ And as against the defendant, the issue of the writ is an approval of the bond, as much as if the approval had been written upon it.^ Much more is it so, if there be on the bond a memorandum of its accept- ance, though not signed by the clerk, and the writ recite the filing of the bond.9 ^,-iJ his approval is but prima facie evidence of the sufficiency of the sureties, subject to be ovcrthrown.^^^ If a person holding the office of clerk of a court institute 1 Banta v. "Reynolds, 3 B. Monroe, 80 ; ^ Handel v. Peet, 18 Arkansas, 230 ; Owens r. Starr, 2 Littell, 2:W. Griffith v. Robinson, 19 Texas, 219. 2 Post, § 411 a; Barkeloo v. Randall, ^ Pearson r. Gayle, 11 Alabama, 278; 4 Blackford, 470. Dothard v. Slicid, 09 Ibid. 135. 8 ilorne v. Mitcliell, 7 Busb, 131. » Levi r. Darling, 28 Indiana, 497. * Cousins V. Brashear, 1 Blackford, 85. ^ Howard v. Oppcnheimer, 25 Mary- 5 Hays V. Gorby, 3 Iowa, 203; Ells- land, 360. Sec Anderson v. Kanawha worth V. Moore, 5 Ibid. 480. Coal Co., 12 West Vir Taylor v. Ricards, 9 Arkansas, 378. kansas, 103. See State v. Fortinberry, 54 Mississippi, 8 Myers v. Lewis, 1 McMullan. 54. 316. ♦ Mantz V. Hendley, 2 Honing & Mun- ' Mantz v. Ilendley, 2 Hening & Mun- ford, .308. ford, 308. 5 Grand Gulf R. R. & B. Co. v. Conger, [128] CHAP. YI.] ATTACHMENT BONDS. § 133 In such case the word attorney in the statute will be considered to include an attorney at law, as well as an attorney in fact ; ^ and it is held, that one acting in the former capacity, in the collection of a debt in a State where he is authorized to practise law, may, as an incident of his employment, execute the bond in the name of his client. In the language of the Supreme Court of Louisiana, " the sio-nino- of the bond is an act of administration alone, indis- pensable to secure the rights of the client, and is fully conferred by the mandate in general terms. The mandate is to collect his debt by process of law. If no agent or attorney in fact is consti- tuted, the attorney at law is the mandatary for this purpose. The signing of the attachment bond is a necessary incident to the collection of the debt, and is embraced in the general power to make the collection." But the same court refused to extend this doctrine to the case of an attorney at law from another State, who was not licensed to practise in the courts of Louisiana.^ Under statutes of similar import, it is held, that a bond signed by one, as principal, styling himself agent of the plaintiff, is a compliance with the statute ; ^ and this view was taken also in cases where he did not so style himself, but signed the bond simply in his personal capacity.^ In Florida, under a statute providing that " before the issuing of any writ of attachment, the party applying for the same shall by himself, his agent, or attorney, enter into bond with two or more securities," a bond executed by an agent of the plaintiff, in his own name as agent,^ or by the attorney who instituted the suit, in his own name as attorney,^ was held a sufficient compliance with the law ; but that a bond executed b}^ the plaintiff's agent in his own name, without describing himself as agent, though he was so described in the affidavit, was fatally defective.'^ § 133. Where the bond purports to be the act of the plaintiff, by an attorney in fact, the court will not hold it a nullity because no power of attorney under seal is produced ;^ but the authority 1 Trowbridge v. "Weir, 6 Louisiana An- * Frost v. Cook, 7 Howard (Mi.), 357; nual, 706. Page v. Ford, 2 Smedcs & Marshall, 266 ; 2 Wetmore v. Baffin, 5 Louisiana An- Clantnn v. Laird, 12 Ibid. 568. nual, 496. 5 Conklin v. Goldsmith, 5 Florida, 280. ^ Dillon V. "Watkins, 2 Speers, 445 ; ^ Simpson i-. Knight, 12 Florida, 144. Walbridge r. Spalding, 1 Douglass, 451 ; ^ Work v. Titus, 12 Florida, 628. Stewart v. Katz, 30 Maryland, 334 ; Gable 8 Wood v. Squires, 28 Missouri, 528. V. Brooks, 48 Ibid. 108. 9 [129] S 134 ATTACHMENT BONDS. [CHAP. YI. of the attorney will be presumed, on the hearing of a motion to quash the writ on account of the insufficiency of the bond. If it be intended to question the authority, it must be done by plea to that effect ;i for the agent's authority is a matter of evidence aliunde, and forms no part of the bond ; and on a motion to quash or dismiss, the court will not inquire into the fact of agency, but presume it.^ The utmost extent to which the court would go in such a case, would be to rule the party to produce within a reasonable time the power of attorney under which he acted.^ In cases of this description, showing the agent to have had no authority to execute the bond, is no ground, of itself, for abating the action ; but, shown in connection with the further fact, that the agent had no authority for instituting the suit, and that the suit is not prosecuted with the authority or consent of the plain- tiff, it would be.^ § 134. Whether a subsequent ratification by the plaintiff, of an unauthorized act of a party in signing his name to the bond, will remedy the defect, has been differently decided. In Louisi- ana, it is held in the negative.^ But in the case from Mississippi, cited in the last section,^ it will be observed that, to defeat the action on account of want of authority in the agent, it must be shown, likewise, that he had no authority for instituting the suit, and that the suit is not prosecuted with the authority or consent of the plaintiff. Afterwards, in the same State, it was expressly decided, that if the plaintiff appear and prosecute the action, it will be considered a recognition of the agent's authority, so as to sustain the suit.'' And in Arkansas, a subsequent ratification by the plaintiff will sustain the bond, and a plea in abatement alleging want of authority in the agent, is insufficient, unless it exclude the conclusion that a ratification has taken place.^ And in Texas, if the suit should be abated because the agent had no 1 Alford V. Jolinson, 9 Porter, 320; » Lindner v. Aaron, 5 Howard (Mi.), Messner v. Ilutcliins, 17 Texas, 597 ; 581. Wriglit !'. Smitli, 19 Ibid. 297 ; Tingle v. * Dove v. Martin, 23 Mississippi, 588. Brison, 14 West Virginia, 295. 5 Grove v. Harvey, 12 Robinson (La.), 2 Lindner v. Aaron, 5 Howard (Mi.), 221. 581 ; Spear v. King, 6 Smedes & Mar- " Dove r. Martin, 23 Mississippi, 588. shall, 270 ; Jackson v. Stanley, 2 Ala- ""- Bank of Augusta v. Conrcy, 28 Mis- bama, ;}26 ; Goddard i". Cunningham, G sissippi, 667. Iowa, 400 ; Wriglit v. Smitli, 10 Texas, ^ Mandel v. Peet, 18 Arkansas, 23G. 207 ; Messncr v. T^wis, 20 Ibid. 221 ; Mc- Donald V. Fist. 53 Missouri, 343. [130] CHAP. Vr.] ATTACHMENT BONDS. § 134 C authority, the plaintiff will, nevertheless, be liable on the bond, if the agent acted at his instance, and was afterwards sustained by him in the prosecution of the suit.^ § 134 a. If the statute require a bond to be given " with sure- ties," but without designating how many, will a bond with one surety be sufficient ? This question came up in Iowa, where it was held, that the attachment could not be quashed because there was only one surety in the bond. The court called to its aid a provision of the Code of that State, that " words importing the singular number only may be extended to several persons or things, and words importing the plural number only may be applied to one person or thing ; " and held, that, as the object of the law is to afford indemnity to the defendant for the wrongful suing out of the attachment ; and as this may be, and often is, as effectually done by one as by a half-dozen securities ; and as it was the business of the clerk who took the bond to see that the surety was sufficient ; the law was in effect complied with by the presentation of one surety .^ § 134 h. Under a statute requiring the plaintiff to " enter into bond with two good and sufficient securities, payable to the defendant, in at least double the debt or sum demanded," each of the two sureties justified in an amount equal to that sworn to ; and the defendant moved to dismiss the attachment because each had not justified in double that amount ; but it was held, that the bond was sufficient, in the absence of evidence showing that the securities were not good for the amount of its penalty .^ § 134 c. Where the statute requires a bond " with good secu- rity, in an amount at least double the debt sworn to," the secu- rities in the bond must be good for its whole amount; and if proceedings to verify the sufficiency of the bond be taken, and the sureties be found not to be good for that amount, but to be "good for a smaller amount, it is not admissible for the plaintiff to amend by reducing his demand, so that the amount for which the sureties are found to be good shall be double the amount claimed after the reduction.* 1 Peiser v. Cushman, 13 Texas, 390. ^ May v. Gamble, 14 Florida, 467. 2 Elliott V. Stevens, 10 Iowa, 418. * Lockett v. Neuf ville, 55 Georgia, 453. [131] § 137 ATTACHMENT BONDS. [CHAP. VI. § 135. Where the law required the sureties in the bond to be residents of the State, it was considered unnecessary to state in. the instrument that they were so ; the fact would be presumed.^ § 186. It is no objection to a bond given in a suit by a copart- nership, that the partnership name was signed to it by one of the firm, instead of the individual names of the several partners. If not binding on all the partners, it is on him who signed it.^ And where the undertaking was not under seal, and the jjlaintiffs were a partnership, and the sureties were also, and they signed in their respective partnership names, the undertaking was held sufficient.^ Under a statute requiring a bond to be taken of " the party for whom the attachment issued," it was considered, in a suit by a mercantile firm, that a bond entered into by one of tlie firm in his own name, was sufficient, wdiere it appeared in the instrument that he executed it as one of the firm, and sufficiently described the suit as being by, and for the benefit of, the firm.* But where the bond recited that the individual partner had sued out the attachment, and was conditioned that if he should be cast in the suit, he should pay all costs and damages recovered against him for suing out tlie writ, it was decided that the bond was not in compliance with the statute, and the attachment was quashed." § 137. The statutes of the different States vary, as to who shall be named as obligee in the bond. In some States, it is the defendant ; in others, the bond is payable to the State, with stat- utory provision for suit on it in the name of the State, to the use of the party injured. In the latter case, it could not well be that any mistake should be made in naming the obligee ; but other- wise in the former ; and it is important to avoid errors on this point, as they would, if made in a material particular, be fatal to the attachment. Thus, where an attachment was issued against a firm by its copartnership name, and the bond was given to two persons as individuals, who, though of the same surnames as those constituting the firm, were yet not described in the bond 1 Jackson V. Stanley, 2 Alabama, 326. * Kyle v. Connelly, 3 Leigh, 719 ; 2 Thatcher r. GofT, 13 Louisiana, 360; Wallis v. Wallace, G Howard (Mi.), Dow V. Smith, 8 Georgia, 551. 254. 8 Danforth v. Carter, 1 Iowa, 54G ; ^ Jones v. Anderson, 7 Leigh, 308. Churchill v. Fulliam, 8 Ibid. 45. [182] CHAP. VI.] ATTACHMENT BONDS. § 141 as beino- the partners of the house ; it was held, that the statute requiring the bond to be " payable to the defendant " was not complied with, and the attachment was quashed.^ But where the suit was against A. B. and C, composing the firm of A. & Co., and the bond was made payable to A. & Co., it was held sufiicieut.^ § 138. As to the Amount of the Bond. This is in all cases regulated by statute ; and the importance of correctness in this respect is so manifest, and the means of exactness so simple, that few questions have arisen in reference to it. § 139. It is no objection that the bond is in a greixter sum than is required by law ; ^ but if it be less it will be fatal, unless amendable.^ § 140. In South Carolina, where the statute requires the bond to be in double the amount sued for, if the action be assumpsit, the bond must be in double the sum stated in the writ ; if debt, and the damages stated in the writ are merely nominal, the debt is the sum sued for, and the criterion of the amount of the bond ; but if the damages are laid to cover the interest which may be due, then the debt and damages are the sum sued for, and the bond must be in double that sum.^ In that State the attach- ment used to be obtained, without a statement under oath of the amount actually sued for, and there was, therefore, nothing by which that amount could be fixed, except the sum claimed in the writ.^ § 141. In Louisiana, where the actual sum claimed by the plaintiff must be stated in the petition on which the suit is founded, the following case arose, under a law which required the bond to be " in a sum exceeding by one half that claimed by 1 Blrdsong v. McLaren, 8 Georgia, 521. the deficiency, as a ground for setting ^ De Caussey i\ Bailey, 57 Texas, 665. aside the attachment, where it was less ' 3 Fellows V. Miller, 8 Blackford, 231 ; than one dollar. Bodet v. Nibourel, 25 Sliockley v. Davis, 17 Georgia, 175; Louisiana Annual, 499. Bourne v. Hocker, 11 B. Monroe, 21. ^ Young v. Grey, Harper, 38; Callen- * Williams v. Barrow, 3 Louisiana, der v. Duncan, 2 Bailey, 4-54 ; Brown v. 57 ; Martin v. Thompson, .3 Bibb, 252 ; Whiteford, 4 Richardson, 327. Samuel v. Brite, 8 A. K. Marsliall, 317 ; « Brown v. "Whiteford, 4 Richardson, Marnine v. Murphy, 8 Indiana, 272. But 327. in Louisiana the court refused to notice [133] § 141 ATTACHMENT BONDS. [CHAP. VI. the plaintiff." The pLaintiff, in order to obtain the attachment, swore that the sum of 'i^2,350, besides interest, damages, &c., was due to liim. Afterwards, on fihng his petition, setting forth his cause of action, he cLaimed a greater amount, which resulted from an allegation of damages, and a fixation of the rate of inter- est ; and it was lield, that his claiming in his petition a greater amount than in his affidavit, did not invalidate the attachment, and that the bond being in a larger sum by one half than that named in the affidavit, was sufficient, though it was not in a larger sum by one half than that claimed in the petition.^ But where the plaintiff claimed in his affidavit a certain sum, with interest at a designated rate, from a given date, and the bond did not exceed, by one half, the amount due, principal and interest, it was held to be fatal to the attachment. This case was distinguished from that just cited, "because in that case the affidavit stated a certain sum as due, ' besides interest, damages, &c.' The bond was properly proportioned to the sum named, and it was considered that the words ' interest, damages, &c.,' were to be disregarded, because neither the rate of interest, nor the time for which it ran, was stated." ^ But afterwards the same court, in again affirming their first position, that the claim- ing in the petition of a greater sum than that sworn to, was not a cause for dissolving the attachment, yet held that the judgment could not be given, with privilege, for a greater amount than that named in the affidavit, nor would the plaintiff be justified in hold- ing, under a levy, a greater amount of property than was neces- sary to cover that sum and costs.^ And this defect in the amount of the bond cannot be cured by filing an additional bond, suffi- cient in amount to cover the additional amount claimed.* Nor is it obviated by the fact that the amount of the bond was fixed by an order of the judge who granted the attachment.^ In Georgia, under a statute requiring " a bond in a sum at least equal to double the amount sworn to be due," the plaintiff swore that there was due liim $45.92, besides interest ; and the bond was given for double the sum of $45.92 ; and it was held 1 Pope V. TTiinter, 13 Louisiana, 306 ; 3 Fellows v. Dickens, 5 Louisiana An- Jackson v. Warwick, 17 Ibid. 43G. nual, 131. 2 Planters' Bank v. Byrne, ?, Louisiana * Graliam v. Burcklialter, 2 Louisiana Annual, G87 ; Graham i;. Burcklialter, 2 Annual, 415. Ibid. 415. 6 Fleitas v. Cockrem, 101 U. S. 301. [134] CHAP. VI.] ATTACHMENT BONDS. § 144 siifificient.i But where, under a statute requiring the bond to be in amount " at least double the svim demanded," and the plaintiff swore to the principal amount due him, and also to a named sum for interest thereon ; and the bond was hi double the amount of the principal sum only ; it was, in Florida, held bad.^ § 142. Where the law required the bond to be in double the sum sivorn to, a misrecital in the bond of the amount sworn to, whereby it appeared that the bond was not in double that sum, but less, was held not to yitiate the bond, as the affidavit con- trolled in ascertaining the true sum.^ ^ § 143. In all these cases of defective or insufficient bond, the defendant is usually the only party who can take advantage of the defect. A subsequent attaching creditor cannot be allowed to become a p'arty to the suit, so as to take advantage of the defect, in order that his attachment may take the property.^ § 144. As to the time wdien advantage should be taken by the defendant of defects in the bond, for the purpose of defeating the attachment, the rule laid down as to affidavits may be considered applicable, that the exception must be taken in limine.^ In Mis- sissippi, as we have seen,*^ the defect is not cured by appearance and plea ; but it is nowhere else so held ; and in South Carolina and Michigan the reverse is the rule.'^ It follows that the objec- tion comes too late in an appellate court, particularly when it was not made in the court below.^ A defendant's appearance, by at- torney, however, to move for the dismissal of an attachment and to except to the jurisdiction of the court over him, is held not to 1 Saulter i-. Butler, 10 Georgia, 510. Robinson (La.), 30; Voorhees v. Hoag- 2 Gallagher v. Cogswell, 11 Florida, lar.d, 6 Blackford, 232 ; Beecher i'. James, 127. 3 Illinois (2 Scammon), 462. 3 Lawrence v. Featherston, 10 Smedes ^ Ante, § 116. & ]\Lars]iall, .345. 7 Young v. Grey, Harper, 38 ; Bryant * Caniberford v. Hall, 3 McCord, .345; v. Hendee, 40 Jliciiigan, 543. McKenzie v. Buchan, 1 Nott & McCord, » Conklin v. Harris, 5 Alabama, 213 ; 205; Wigfall i-. Byne, 1 Richardson, Fleming v. Burge, 6 Ibid. 378; Burt v. 412 ; Van Arsdale v. Krum, 9 Missouri, Parish, 9 Ibid. 211 ; Bretney v. Jones, 1 397. G. Greene, 366 ; Miere i'. Brush, 4 Illinois ^ Garmon v. Barringer, 2 Devereux & (3 Scammon), 21; Morris v. Trustees, 15 Battle, 502 ; Stoney i-. McNeill, Harper, Ibid. 266 ; Lawver v. Langhans, 85 Ibid. 156; Watson v. McAllister, 7 Martin, 138 ; Kritzer y. Smith, 21 Missouri, 296. 368 ; Enders v. Steamer Henry Clay, 8 [135] § 147 ATTACHMENT BONDS. [CHAP. VI. be such an appearance as will be construed into a submission to the jurisdiction.^ § 1-15. The extent to which courts may make requirements upon parties in regard to bonds, must depend entirely upon stat- utory authority, except as to those matters which are apparent on the face of the proceedings. If a bond, legal in its terms, parties, and amount, be given at the institution of the suit, and accepted by the proper officer, the court will not, without some statutory authority, look into any alleged want of sufficiency in the parties. Thus, if the sureties were insolvent when they signed the bond, or liave since become so, the court will not, without such authority, sustain a motion to require additional security.^ § 146. There is no power in a court, except as conferred by law, to allow an amendment of an insufficient bond ; ^ but this authority is now given in several States. In Missouri, under a statute authorizing the court to " order another bond to be given," where that given " is insufficient, or any security therein has died, or removed from the State, or has become, or is likely to become, insolvent," a bond was given, which was defective, through the omission of a material clause in the condition, and leave was given the plaintiff to file an amended bond. It was contended that such an amendment was not contemplated by the statute, but that the insufficiency must be for the reason either that the security had died or removed from the State, or had be- come, or was likely to become, insolvent ; but it was held, that if such was the intention of the legislature, the words " that the bond given by the plaintiff is insufficient " might as well have been omitted ; and that the amendment was rightly permitted.* § 147. Under a statute which provided that "the plaintiff, before or during the trial, should be permitted to amend any de- fects of form in the original papers," it was held, that a defective 1 Ante, § 112 ; Bonner i-. Brown, 10 - Troskey v. West, 8 Smedes & Mar- Louisiana Annual, 334; Johnson v. shall, 711. Buell, 2H Illinois, GO. Scd contra, Whit- 3 Houliiac v. Kigby, 7 Florida, 830. ing V. Budil, 5 Missouri, 443; Evans y. * Van Arsdale v. Krum, 9 Missouri, King 7 Ibid. 411. 307. See Bergman v. Sells, 39 Arkansas, 97. [136] CHAP. VI.] ATTACHMENT BONDS. § 150 bond might be amended by the substitution of a new and perfect one ; ^ and that a defect in the bond would not be a sufficient cause for quashing the proceedings, unless an opportunity were giv^en to the plaintiff to execute a perfect bond, and he declined doing S0.2 § 148. Where this right to amend is given, it makes no differ- ence whether the bond be void or only defective : in either case it is the duty of the court to permit the plaintiff to substitute a sufficient bond.^ But the application to amend must contemplate the removal of all the objections to the bond, or the refusal to allow amendment will not be error. Therefore, where the bond was without seals to the names of the principal and surety, and the principal asked leave to affix a seal to his own name, which was refused ; and the attachment was quashed for want of sufficient bond ; it was held not to be error, because, if the seal had been affixed to his name, the bond would still have been insufficient, from the want of a seal to that of the surety.* § 148 a. When a plaintiff has obtained leave to file an amended bond, and has done so, it is substituted for that originally given, and has the effect of sustaining the attachment from the com- mencement of the action, and is to be treated as the defendant's security from that time.^ § 149. Where the plaintiff needs the testimony of a surety in his bond, he will be allowed, if no liability on the bond has already accrued, to substitute a new surety.*^ § 150. The errors and defects of attachment bonds, however they might affect the attachment suit, do not impair the liabil- ity of the obligors to the defendant. Upon them the obligation 1 Lowry v. Stowe, 7 Porter, 483. 29 Georgia, 642 ; Irvin v. Howard, 37 ^ Planters & Merchants Bank v. An- Ibid. 18. drews, 8 Porter, 404; Lowe v. Derrick, 9 3 Jackson v. Stanley, 2 Alabama, 326 ; Ibid. 415; Scott v. Macy, 3 Alabama, Conklin v. Harris, 5 Ibid. 213; Jasper 250; Lea v. Vail, 3 Illinois (2 Scammon), County v. Chenault, 38 IMissouri, 357. 473; Tevis V. Hughes, 10 Missouri, 380; * Hunter v. Ladd, 2 Illinois (1 Scam- Wood V. Squires, 28 Ibid. 528 ; Beardslee mon), 551. V. Morgan, 29 Ibid. 471 ; Henderson 5 Branch of State Bank v. Morris, 13 V. Drace, 30 Ibid. 358; McDonald v. Iowa, 136. Fist, 53 Ibid. 343 ; Oliver v. Wilson, « Tyson v. Lansing, 10 Louisiana, 444. [137] § 152 ATTACHMENT BONDS. [CHAP. VI. continues, though the attachment might have been quashed be- cause of the insufficiency of the instrument, eitljer as to amount, terms, or the time of its execution. Thus, though a bond be not taken until after the writ is issued, — which we have seen is a proper ground for quashing the writ,^ — the obligors cannot set up that fact as a defence to an action on the instrument.^ But if it be not given till after the suit is dismissed, it is wholly void.^ And the omission from a bond of a part of the required condition does not invalidate it as against the obligors, but, to the extent it goes, it is valid.^ § 151. Where a bond is executed without being required or authorized by any statute, the makers cannot defend against it on that ground ; it is good as a common-law bond. This Avas ruled in an action on a bond, given by a plaintiff on commencing a suit b}' attachment in a Circuit Court of the United States, and the bond was made to the United States. No law of the United States requiring it, and not being executed in connection with any business of, or any duty of the obligors to, the government, it was contended that it could not be enforced ; but the court determined otherwise.^ So, if the law require the bond to be approved by the court, but it be approved by a judge in vacation, it is not therefore void, but is good as a common-law bond.^ § 152. The bond is not confined, in its obligation, to the pro- ceedings in the court in which the attachment suit was instituted, but extends on to the final determination of the cause. Where the condition was " to pay the defendant all damages and costs which he may sustain by reason of the issuing of the attachment if the plaintiff fail to recover judgment thereon," the plaintiff recovered judgment in the court in which the suit was brought, and the defendant appealed therefrom, and in the appellate court the judgment was reversed. When sued on the bond, the obligor .urged that the condition was not broken, inasmuch as he had recovered judgment in the attachment suit; but this view was not sustained ; the court considering that the bond was not re- 1 Ante, § 121. ^ Barnes i". Webster, IG Missouri, 258; 2 Sumpter v. Wilson, 1 Indiana, 144. Slieppard v. Collins, 12 Iowa, 570. 8 Benedict v. Bray, 2 California, 251. « Williams v. Coleman, 49 Missouri, * Iliblis V. Blair, 14 Pcnn. State, 413; 325. State V. Berrv, 12 Missouri, 37(5. [l:i8] CHAP. VI.] ATTACHMENT BONDS. § 155 stricted to the court in Nvhicli the attachment was obtained, but extended to the final result of the case.^ § 153. Actions on Attachment Bonds.* Approaching now the subject of actions on these bonds, the inquiry arises, What is the legislative intention in requiring such bonds to be given ? Is it that they shall supersede the common-law action for malicious prosecution? If so, the defendant in the attachment can main- tain no action, save on the bond. If not, then the bond must be intended, either as a mere security for what may be recovered in an action for malicious prosecution, or as authorizing a recovery of damages for a wrongful attachment, on other principles than those established by the common law in actions for malicious prosecution. § 154. On the first point, it has been uniformly decided, that the remedy of the attachment debtor for a wrongful attachment, by an action for malicious prosecution, is not affected by the exe- cution of the bond, but that that remedy still subsists.^ § 155. On the second point, it seems incontrovertible that the bond is not intended as a mere security for the payment of what inay be recovered in an action for malicious prosecution ; for if so intended, it should be conditioned for the payment of the dam- ages which the defendant may sustain by reason of the attachment having been sued out maliciously and without probable cause ; but such are never the terms used. Again, the penalty is always in a prescribed sum, which in many cases would be much less than the amount that might be recovered in an action for mali- cious prosecution. And again, if so intended, no action could properly be maintained upon it, until the damages had been liq- uidated and determined in an action for malicious prosecution ; whereas, it is a constant practice to sue in the first instance on the bond, and has been repeatedly decided to be admissible.^. Hence we apprehend that the bond is not intended merely as a 1 Ball V. Gardner, 21 Wendell, 270; Robinson (La.), 418; Smith v. Eakin, 2 Bennett v. Brown, 20 New York, 99. Sneed, 456 ; Bruce i'. Coleman, 1 Handy, ■^ Sanders v. Huglies, 2 Brevard, 405; 515; Sledge i-. McLaren, 29 Georgia, (34; Donnell v. Jones, 13 Alabama, 490; Smith Churchill v. Abraham, 22 lUinois, 455. V. Story, 4 Humphreys, 1G9 ; Pettit v. Mer- 3 Po^t, § 166. cer, 8 B. Monroe, 51 ; Senecal v. Smith, 9 [139] § 156 ATTACHMENT BONDS. [CHAP. VI. security for damages recoverable in an action for malicious prose- cution ; and that in requiring, sucli bonds, it is intended to authorize the recovery of other than such damages ; and that a recovery on them is nit restricted to that authorized b}'^ the principles of the common law governing actions for malicious prosecution. § 156. This subject was discussed by the Court of Appeals of Kentucky, in a case where the condition of the bond was " for the payment of all costs and damages sustained by the defendant by reason of the wrongful issuing of the order for the attachment ; " and the court said: " The extent to which the plaintiff has a right to recover in a suit of this kind, or in other words, his right to damages commensurate to the injury sustained by him in conse- quence of the extraordinary proceeding by attachment, forms the chief subject of inquiry in this case. Has he a right to show that his credit has been seriously affected, his sensibilities wounded, and his business operations materially deranged, in consequence of the attachment having been sued out ; and to rely upon these matters to enhance the amount of damages ? Or is he to be con- fined to the costs and expenses incurred by him, and such damages as he may have sustained by a deprivation of the use of his prop- erty, or any injury thereto, or loss or destruction thereof, by the act of the plaintiff in suing out the attachment ? " The defendant has a right to bring an action on the case against the plaintiff for a vexatious and malicious^ proceeding of this kind. In such a suit, damages may be claimed for every injury to credit, business, or feelings. But to sustain such a suit, and enable the plaintiff to succeed, malice upon the part of the defendant, and the want of probable cause, are both requisite. In a suit on the bond, the plaintiff is not bound to show malice, nor can the defendant rely, by way of defence, upon probable cause. It would seem, therefore, to follow, that such injuries as he is entitled to redress for, only where malice exists, and probable cause is wanting, could not, with any propriety, be estimated or taken into consideration in a suit on the bond. To allow it to be done would be inconsistent with all the analogies of the law, which should not be violated, unless it be imperiously required by the terms of the bond, or the presumed intention of the legislature. [140] CHAP. VI.] ATTACHMENT BONDS. § 157 " If an order has been obtained without just cause, and an attachment has been issued, and acted on in pursuance of the order, the terms of the bond secure to the defendant in the attach- ment all costs and damages that he has sustained in consequence thereof. The condition of the bond is satisfied, and its terms substantially complied with, by securing to him damages adequate to the injury to the property attached, and the loss arising from the deprivation of its use, together with the actual costs and expenses incurred. '' It cannot be rationally presumed that the legislature designed to impose on the security in the bond a more extensive hability. The statute is remedial in its character, and should be expounded so as to advance the object contemplated. To impose an almost unlimited liabihty on the security in the bond, sufficient to embrace every possible injury that the defendants might sustain, would be in effect to defeat in a great measure the object of the statute, by rendering it difficult, if not impracticable, for the plaintiff to execute the necessary bond." ^ § 157. The introduction of attachment bonds in Alabama, led to a change in the common-law principles which would otherwise have regulated the action for a wrongful attachment. The first reported decision there on this subject was in an action on the case ; in which the declaration charged that the defendant, with- out any just or probable cause, procured an attachment to be issued and levied on the plaintiff's property. This, as a declara- tion for malicious prosecution, was at the common law manifestly insufficient. Plea, not guilty and issue. On the trial, the Cir- cuit Court charged the jury that in this action it was essential to prove malice. This view was overruled by the Supreme Court; its decision manifestly resting on the existence of the law requir- ing a bond to be given, though the action was not on the bond. That law was considered as changing the common-law rule in such cases.^ The next was also an action on the case for suing out an 1 Pettit I'. Mercer, 8 B. :Monroe, 51. security for the payment of such dam- See Bruce v. Coleman, 1 Handy, 515. In ages as may be recovered in an action Georgia, where the bond is for the pay- for malicious attachment. Sledge v. Mo- ment of " all damages which may be Laren, 29 Georgia, 04. recovered against the plaintiff " for suing 2 Wilson v. Outlaw, Minor, 367 ; Ivirk- out the attachment, it is held to be only sey i-'. Jones, 7 Alabama, 622. [141] § 158 ATTACHMENT BONDS. [CHAP. VI. attachment without any reasonable or probable cause, and for the purpose of vexing and harassing the plaintiff. The Supreme Court again held, that the expression of the legislative will, in desio^nating the terms of the bond, indicated that the mere wrongful recourse to this process was a sufficient cause of action, and that malice was important only in connection with the ques- tion of damages.^ The same court held, that actions on attachment bonds are governed in all respects by the rule they had established as ap- plicable to actions on the case, except the recovery, which could not exceed the penalty of the bond.^ This rule was expressed in these words : " Whenever an attachment is wrongfully sued out, and damage is thereby caused to the defendant in the suit, he is entitled, by force of the statutory provision, to recover for the actual injury sustained. And if, in addition to its being wrongfully sued out, it is also vexatiously, or in other terms, maliciously sued, then the defendant, upon the principle which governs the correlative action for a malicious prosecution, may recover damages as a compensation for the vexatious or malicious act; or, in the terms of the statute, such damages as he may be entitled to on account of the vexatious suit."^ § 158. In Louisiana, the same views as those entertained in Alabama have been expressed, as well in actions on attachment bonds, as in those which, as reported, do not appear to be of tliat character. There, the bond is, " for the payment of such dam- ages as the defendant may recover, in case it should be decided that the attachment was wrongfully issued." While the com- mon-law principles governing actions for malicious prosecution are there fully recognized and affirmed,* it is held, that where no malice exists, the actual damage sustained may bo allowed : if malice exists, vindictive damages may be recovered.^ And so in Kansas,^ and Texas.'^ 1 Kirksey v. Jones, 7 Alabama, G22; * Senecal v. Smith, 9 Robinson (La.), Seay v. Greenwood, 21 Ibid. 491. 418; Grant ;•. Deuel, 3 Ibid. 17. 2 Hill V. Rushintr, 4 Alabama, 212; ^ Co.x v. Robinson, 2 Robinson (La.), McCiillough r. Walton, 11 Ibid. 492. 313; Offutt f. Edwards, 9 Ibid. 90; Horn » Kirksey v. Jones, 7 Alabama, G22 ; v. Bayard, 11 Ibid. 2-39; Littlcjohn v. MeCullough V. Walton, 11 Ibid. 492; Wilco.x, 2 Louisiana Annual, G20 ; Moore Donneil i". Jones, 13 Ibid. 490; Sliarpe v. v. Withenburp, 13 Ibid. 22. Hunter, 10 Ibid. 7G5 ; Floyd v. Hamilton, « IMcLaughlin r. Davis, 14 Kansas, 168. 33 Ibid. 235 ; Pounds y. Hamner, 57 Ibid. T Real v. Samuels, 22 Texas, 114; 342 Hughes v. Brooks, 30 Ibid. 379. [142] CHAP. YI.] ATTACHMEXT BONDS. § 162 § 159. In Missouri, where the condition of the bond was " for the prosecution of the suit without delay and with effect, and the payment of all damages which should accrue to the defendant or any garnishee, in consequence of the attachment," the principles of the common law in regard to actions for malicious prosecution have not been applied to actions on these bonds, but on the con- trary the recovery of actual damages was allowed in a case pre- senting no ingredient of malice.^ And so in New York,^ and in Ohio.3 § 160. In Tennessee, however, where the bond is conditioned " for satisfying all costs which shall be awarded to the defendant, in case the plaintiff shall be cast in the suit, and also all damages which shall be recovered against the plaintiff in any suit which may be brought against him, for wrongfull}"- suing out the attach- ment," it was decided, in an action on the case for a wrongful attachment, that the principles of the common law remained un- changed ; * and that in an action on the bond, a recovery might be had, not only for such damages as are properly recoverable in the common-law action, but likewise for other damages, upon grounds contemplated by the statute, and not embraced hj the principles governing the action on the case.^ In this State, in order to recover under the bond damages for a malicious attach- ment, such as are recoverable in the common-law action, it is necessary in the declaration to aver malice in the suiijg out and levy of the attachment.^ § 161. From this summary of the views of different courts on this subject, it is apparent that the execution of a cautionary bond by an attachment plaintiff, modifies the common-law rule, and gives the defendant recourse against the plaintiff on the bond, for a wrongful attachment, where there existed no malice in suing it out. The practical working of this rule will be pres- ently exhibited, in connection w4th the question of damages. § 162. The only party who can maintain an action on an at- tachment bond is the defendant. The bond is not required for 1 Hayden v. Sample, 10 Missouri, 215. * Smith v. Story, 4 Humphreys, 169. 2 Dunning v. Humphrey, 24 Wendell, ^ Smith v. Eakin, 2 Sneed, 456, 31 ; Winsor i-. Orcutt, 11 Paigre, 578. 6 Doll v. Cooper, 9 Lea, 576. ' Bruce v. Coleman, 1 Handy, 515. [143] § 162 a ATTACHMENT BONDS. [CHAP. VI. the protection of the officer executing the attachment, nor for the indemnification of a third party whose property may be wrongfully attached, but simply for the benefit of the party against whom the writ issues. This was so held in Virginia, where the condition of the bond was " to pay all costs and dam- ac^es which may be awarded against the plaintiff, or sustained by any person, by reason of his suing out the attachment."^ And so in Louisiana,^ and West Virginia.^ The defendant's right of action on the bond, so far as it relates to compensation for injuring, detaining, or converting the property attached, passes to his assignee in bankruptcy ; but not so his right to recover compensation for injury to his business, reputa- tion, and credit, and vindictive damages based on the falsity or mala fides of the claim, wanton abuse of the process, or express malice in suing out and levying it.^ § 162 a. Where the defendant has been served, no action will lie on the bond until the attachment shall have been discharged ; and such final disposition of it must be alleged. ^ Therefore, where an attachment was abated by the judgment of the court, on a trial of a plea in abatement to the affidavit, but motions in arrest of judgment and for a new trial were made and pending when the action on the bond was instituted, the action was held to have been prematurely brouglit.*^ But where the attaclnnent proceedings are ex parte, the right of action on the bond does not depend on the attachment having been discharged ; but it may be sued on after judgment obtained on publication ; and that judgment will not preclude the defendant therein from showing that the attachment was wrongfully obtained, because the claim on which it was issued was false and unjust.^ Where, as shown in the next section to be the case in Ohio, when there are several defendants in the attachment, a suit may be maintained on the bond by those against Avhom the attach- ment was wrongfully obtained, without joining those against 1 Davis V. Commonwealth, 13 Grattan, * T)o\\ v. Cooper, 9 Lea, 576. 139. 5 Xolle r. Thompson, 3 Metcalfe (Ky.), 2 Raspillier v. Brownson, 7 Louisiana, 12L 2.^1; Edwards v. Turner, 6 Robinson 6 State v. Williams, 48 Missouri, 210. (La.), .382. '' Bliss r. Ileasty, 01 Illinois, 338. 3 Mitchell f. Chancellor, 14 "West Vir- ginia, 22. [144] CHAP. VI.] ATTACHMENT BONDS. § 165 a whom it was rightfully obtained, it is not necessary, in a suit by the former on the bond, to aver or prove that the attachment had been discharged as to the latter.^ § 163. Where there are several defendants, and a bond in favor of them all, it was held in Alabama, that the action on the bond must be in the name of all, though the attachment was levied on tlie separate property of each, in which they had not a joint in- terest. How the damages are to be divided between the obligees in the bond, is a matter with which the obligors have no concern, as they will be protected by a recovery in the names of all the obligees, from another action by all, or either.^ In Ohio, how- ever, it was held, that a right of action accrues to those defend- ants who were injured by the wrongful attachment, and that it is not necessary that the defendants against whom the attachment was rightfully obtained should be joined either as plaintiffs or defendants.^ « § 164. It is not necessary, in order to enable the party injured to maintain a suit on the bond, that he should obtain an order of the court in which the bond was filed, to deliver it to him for suit.* § 165. The sureties in the bond can be subjected to liability, only in reference to the particular writ for obtaining which it was given. This was decided in Louisiana, upon the following case : A. sued out an attachment, and gave bond. The attachment was not executed, and some time afterward A. voluntarily aban- doned it, and took out another, without giving any new bond. It was held, that the liability of the surety on the bond extended only to the time of the abandonment of the first writ, and could not be revived without his consent.^ § 165 a. The sureties to an undertaking by which they cove- nant to pay all costs and damages which may be awarded to or sustained by the defendants, not exceeding a sum specified, are 1 Alexander v. Jacoby, 2-3 Ohio State, 3 Alexander v. Jacoby, 23 Ohio State, 358. 358. 2 Boyd V. Martin, 10 Alabama, 700 ; * Bruce v. Colenaan, 1 Handy, 515. Masterson v. Phinizy, 56 Ibid. 336. ^ Erwin v. Com. & R. R. Bank, 12 Robinson (La.), 227. 10 [145] § 166 ATTACHMENT BONDS. [CHAP. VI. entitled to the benefit of all payments for costs or damages made by their principal, and cannot be held liable for more than the difference between the amount so paid by him and the sum •specified in the undertaking.^ § 166. The question arises, whether, in order to maintain an action on the bond, the damages must first be recovered in a dis- tinct action. This is not believed to be requisite, and it was so decided in Virginia, where the bond is to pay " all such costs and damages as may accrue for wrongfully suing out the attach- ment ; " 2 in Alabama, where it is to pay " all such costs and damages as he might sustain by the wrongful or vexatious suing out of the attachment ; " ^ in Arkansas, where it is to pay " all damages the defendant may sustain by reason of this action, if the order therefor is wrongfully obtained;"* in Tennessee, where it is to pay " all damages which shall be recovered against the plaintiff in any suit which may be brought against him, for wrongfully suing out the attachment ; " ^ in Ohio, where it is " to pay all damages which the defendant may sustain by reason of the attachment, if the order therefor be wrongfully obtained ; " ^ and in Illinois, where it is " to pay and satisfy the defendant all such costs and damages as shall be awarded against the plaintiff in any suit which may hereafter be brought for wrongfully suing out the attachment." ^ The Supreme Court of Georgia, however, took a different view, w^here the bond was to pay " all damages which may be recovered against the said plaintiff for suing out the attachment ; " terms almost the same as those in the Tennes- see bond.8 And in Mississippi, where the bond was " to pay and satisfy the defendant all such costs and damages as shall be awarded against him in any suit which may be hereafter brought for wrongfully suing out the attachment," it was held, that suit must first be brought against the principal in the bond, and that an action thereon against the sureties can only be maintained in the event of his failure to pay the costs and damages recovered 1 Baere v. Armstrong, 33 New York ^ Smith ;•. Eakin, 2 Snccd, 45G. Supreme Ct. 19. '^ Bruce ;•. Coleman, 1 Handy, 515. 2 Dickinson v. McGraw, 4 Randolph, ■ Churchill v. Abraham, 22 Illinois, 158. 455. 3 Ilemdon v. Forney, 4 Alabama, 243. « Sledge ?•. Lee, 19 Georgia, 411. ^ Boatwright v. Stewart, 37 Arkansas, G14. [146] CHAP. YI.] ATTACHMENT BONDS. § 168 ao-ainst him in snch suit.^ And so in Colorado, where the terms of the bond are the same as in Mississippi.^ § 166 a. Where the suit may be maintained on the bond, with- out previous recovery of damages in a distinct action, the sure- ties may be sued jointly with the principal. ^ If the defendant sue thQ principal alone, and recover damages for the wrongful issue of the attachment, the surety cannot be made liable upon that judgment ; for he was not a party to it.'* § 167. Debt is undoubtedly the proper form of action on attachment bonds ; but it has been held that covenant will lie.^ In assigning breaches, it is not sufficient merely to negative the terms of the condition. The declaration must show that' the attachment was wrongfully sued out, and what damages the plaintiff has sustained. Therefore, where the condition was, that the plaintiff should prosecute his attachment to effect, and pay and satisfy the defendant all such costs and damages as he might sustain by the wrongful or vexatious suing out of such attachment ; and the breach assigned was that he did not prose- cute his attachment to effect, nor pay the costs, damages, &c., which the defendant sustained by the wrongful and vexatious suing out of the attachment, by means whereof the said bond became forfeited, and the attachment plaintiff liable to pay the penalty ; the declaration was held bad on demurrer.^ § 168. In assigning breaches, if the damages alleged to have been sustained exceed the amount of the penalty, it is proper to assign the non-payment of the penalty. Where the damages claimed do not equal the penalty, the averment should be that they have not been paidj A declaration which fails to aver the non-payment of the damages sustained is bad on demurrer.^ 1 Holcomb u. Foxworth, 34 Mississippi, 620. See Winsor v. Orcutt, 11 Paige, 265. 578; Love v. Kidwell, 4 Blackford, 553. 2 Sterling City Mining Co. v. Cock, 2 ^ Hill v. Rushing, 4 Alabama, 212. Colorado, 24 ; Sterling City Mining Co. v. ^ Michael v. Thomas, 27 Indiana, 501 , Hughes, 3 Ibid. 229. Ulirig v. Sinex, 32 Ibid. 493; Ryder r. 3 Jennings v. Joiner, 1 Coldwell, 645. Thomas, 32 Iowa, 50; Horner v. Harri- ■» Bunt?.'. Rheum, 52 Iowa, 619. son, 37 Ibid. .378; Pinney v. Hershfiekl, 5 Hill r. Rushing, 4 Alabama, 212. 1 Montana, 367. *> Flanagan v. Gilchrist, 8 Alabama, [147] § 170 ATTACHMENT BONDS. [CHAP. VI. § 169. A recital in the condition of the bond, that the plaintiff had issued a writ of attachment against the defendant, estops the obligors from denying by plea that the attachment was sued out, and such a plea is bad on general demurrer.^ § 170. Under what circumstances may the attachment defend- ant maintain an action on the bond ? Does the mere failure of the plaintiff to prosecute his suit work a forfeiture of the condi- tion ? The Supreme Court of Louisiana has gone very far in giving recourse on the bond in such case. There, it will be remembered, the obligation is " for the payment of such damages as the defendant may recover, in case it should be decided that the attachment was lorongfully obtained ; " and it is held, that if a plaintiff voluntarily abandons his attachment, he renders him- self and his surety responsible in damages."'^ The same court, with less apparent reason, has gone further, and decided that, though it appear that the plaintiff had, at the commencement of his suit a sufficient and very probable cause of action, and was prevented from getting a judgment by some technical objection, or irregularity in the proceedings, Avhich could not be foreseen, the defendant may nevertheless hold him liable for the damages he actually sustained ; and that, if an attachment be set aside by order of the court, it is i^rimd facie evidence that it was wrong- fully obtained.^ A decision was once given, that would seem to exempt the surety in such a case from liability ; ^ but this doc- trine was held inapplicable to the plaintiff.^ As, in that State, the defendant's claim on the bond for damages undoubtedly rests on its being decided that the attachment was ^'-wrongfully obtained^'' it is difficult to see upon what principle the plaintiff can be charged, when it is admitted that the attachment was rujlitfully obtained, but he failed to obtain a judgment, for tech- nical reasons, having no connection with the merits of the action or the cause for attachment. The Supreme Court of Alabama took a different view of the subject, and one more consonant with sound reason. In an action 1 Love V. Kidwell, 4 Blackford, 553. * Garretson v. Zacharie, 8 Martin, n. s. 2 Cox V. Robinson, 2 Robinson (La.), 48L 313. See Penninian i-. Richardson, 3 ^ Cox v. Robinson, 2 Robinson (La.), Louisiana, lOL 313. " Cox I'. Robinson, 2 Robinson (La.), 313. [148] CHAP. VI.] ATTACHMENT BONDS. § 170 ou an attachment bond, the condition of which was, " that the phiintiff should prosecute his attachment to effect, and pay the defendant all such costs and damages as he may sustain by the wrongful or vexatious suing out the attachment," it appeared that in the attachment suit, the defendant, by a plea in abatement, caused the attachment to be quashed, for informality in the affi- davit upon which it issued, and then sued the plaintiff for dam- ages. On the trial of this suit for damages, it was shown that there were good grounds for the attachment, though not suffi- ciently set out in the affidavit. The court charged the jury, that if they believed the attachment was sued out, and was abated on plea, the plaintiff was entitled to recover the actual damage he had sustained. The Supreme Court held this instruction to be wrong, and observed : " What is meant by the term ' wrongful,' as used in the statute to which this bond conforms ? Was it, as is contended, designed to apply to defects in the form of the pro- ceeding, on account of which the attachment should be quashed, as well as to the ground upon which it was to be issued ? Or was the object of the framers of the act merely to provide a remedy against persons who should resort to this extraordinary remedy to the prejudice of another, without cause or sufficient ground there- for? We think that by the wrongful suing out of the attach- ment is meant, not the omissions, irregularities, or informalities which the officer issuing the process may have committed in its issuance, but that the party resorted to it without sufficient ground." ^ In Arkansas, the bond was " for all damages the defendant may sustain by reason of this action, if the order therefor is wrongfully obtained ; " and it was there held, that the dissolu- tion of the attachment for informality in the affidavit was not sufficient proof that the attachment was wrongfully obtained.^ In Kentucky, where the bond was conditioned " for the pay- ment of all costs and damages sustained by the defendant by reason of the wrongful issuing of the order for an attachment," — terms, in substance, equivalent to those of the Louisiana bond, — it. was held, that a mere failure to prosecute the suit does not give an action on the bond. The order must have been procured ^ Sharpe v. Hunter, 16 Alabama, 765 ^ Boatwright v. Stewart, 37 Arkansas, See Eaton v. Bartscherer, 5 Nebraska, 614. 469. [149] § 170 ATTACHMENT BONDS. [CHAP. VI. wrongfully and without just cause, to constitute a breach of the condition, although the plaintiff may have abandoned the prose- cution of the suit.i And so in lowa.^ In Tennessee, the condition of the bond is, " for satisfying all costs which shall be awarded to the defendant, in case the plain- tiff shall be cast in the suit, and also all damages which shall be recovered against the plaintiff in any suit or suits which may be brought against him for wrongfully suing out the attachment ; " and it has been there decided, that mere want of success does not per se subject the plaintiff to an action,2and that the burden is on the defendant to show that he has sustained damage ; and if no evidence to that point be given, no damages can be recovered.* In Missouri, where the condition of the bond is " that the plain- tiff shall prosecute his action without delay and with effect, . . . and pay all damages and costs that may accrue to any defendant or garnishee, by reason of the attachment, or any process or pro- ceeding in the suit, or by reason of any judgment or process thereon ; " a judgment on the merits for the defendant, in the at- tachment suit, will authorize a suit on the bond, though he did not put in issue the truth of the affidavit on which the attach- ment issued.^ And so, where the defendant gives special bail dissolving the attachment, and the plaintiff dismisses the action.*^ In Indiana, views have been expressed on this subject, such as have not been elsewhere. There the bond or "undertaking" is that the plaintiff " shall duly prosecute his proceeding in attach- ment, and pay all damages which may be sustained by the de- fendant, if the proceedings of the plaintiff shall be wrongful and oppressive ; " and the law declares that " a defendant shall be entitled to an action on the undertaking ... if it shall appear 1 Pcttit V. Mercer, 8 B. Monroe, 51. tlie orJer of discharge of the attachment In that State this case occurred : A. without prejudice was, under the circuni- sued B. by attacliment, and when tlic stances, no evidence that the attachment case liad been several years pcndin-j, the was wrongful or even hurtful, but rather office of the clerk of the court, and tlie implied the contrary. Cooper v. Hill, 3 record in the case, were destroyed by Bush, 219. fire. Afterwards, the court ordered the ^ Noekies v. Eggspeiler, 47 Iowa, 400. plaintlfF to supply the burnt record or ^ Smith v. Story, 4 IIum])hreys, 109.^ submit to a nonsuit. He could not sup- * Kanning v. Eeeves, 2 Tennessee Ch'y, ply a complete record, and thereupon liis 26o. l)etition was dismissed, and his attach- ^ State v. Beldsmeier, 5G Missouri, ment "discharged without prejudice." 226. He was then sued on the bond given to " State v. O'Neill, 4 Missouri Appeal, obtain the .nttnchment. It was held, that 221. [150J CHAP. VI.] ATTACHMENT BONDS. § 170 a that the proceedings were wrongful and oppressive." In an ac- tion of this kind, it appeared that tlie attachment suit was deter- mined in favor of the defendant, but without his putting in issue the truth of the affidavit, and without any finding by the court on that point. It was held, that the right of action existed, not- withstanding there had been no such issue or finding. And the court went farther, though the point was not involved in the case, and expressed the opinion that an action on the undertaking might be maintained, if the attachment proceedings were wrong- ful and oppressive, though there had been judgment /or the plain- tiff in the attachment suit.^ This would seem to have been intended to apply only to a case where there had been no contest over the affidavit; for at the same terra the court said that where both the main action and the attachment are sustained, — which, of course, implies a contest on both, — there can be no suit on the undertaking.^ In Kansas, the allowance of a motion to vacate and discharge the attachment because the allegations in the affidavit therefor were untrue, is conclusive, and authorizes a recovery on the bond,^ before the final determination of the suit in which the attach- ment issued.* § 170 a. When sued on the bond, where there has been no pre- vious trial and determination of the rightfulness of the plaintiff's act in suing out the attachment, the question arises whether, in justifying that act, he is confined to matters known to him when the attachment was obtained, or may also show facts which were not then known to him, but which go to prove that the grounds alleged by him for obtaining it were in fact true. In an action for malicious prosecution, as appears elsewhere,^ probable cause cannot be established by showing facts of which the plaintiff had no knowledge when he sued out the writ ; but in Iowa, it has been held otherwise, in suits on attachment bonds, whose obliga- tion is " to pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment." In that State, to obtain an attachment, the plaintiff swears that he verily believes that the defendant is doing or has done that which will 1 Harper v. Keys, 43 Indiana, 220. ■* Kerr v. Eeece, 27 Kansas, 469. 2 Wilson V. Root, 43 Indiana, 486. ^ Post,. § 732 a. * Hoge V. Norton, 22 Kansas, 374. [151] § 170 a ATTACHMENT BONDS. [CHAP. VI. justify the attachment. It was there held, at first, that the true issue in an action on the bond is whether the phiintiff had suffi- cient cause for believing as he alleged ; and that if the belief appears to have been without foundation or verity, the attachment was wrongful.! Afterwards the court said : " The question, under our statute, is not whether the facts were actually true, upon which the attaching plaintiff bases his affidavit for a writ, but had he, exercising that degree of caution that a reasonably prudent man should, good cause to believe that which he had stated as true." ^ There would be more foundation for this view if the statute, as in some States, required the plaintiff to aver that he had good reason to believe and did believe the existence of the facts alleged in the affidavit for obtaining the attachment ; but even in that case, as elsewhere appears,^ a plea traversing the affi- davit does not put in issue the plaintiff's belief, nor the goodness of the reasons for his belief, but the truth of the facts charged. It is not, therefore, surprising that the Iowa court should have subsequently reconsidered and changed its conclusions. The rule there now is, that if the plaintiff had good cause to believe the grounds for attachment true, or if they were true in fact, the suing out of the attachment was not wrongful.* In that State, where an attachment was obtained on the allegation that " the defendant was about to dispose of his property with intent to defraud his creditors, and was about to convert his property into money for the purpose of placing it beyond the reach of his cred- itors ; " in an action against the attachment plaintiff for wrongful attachment, it was held, that if he had reasonable grounds^ to believe the allegations upon which the writ issued, the action could not be maintained ; and that it was error for the court to instruct the jury that the grounds of his belief should have been such " as to lead a reasonably prudent man to act in matters of likjhest moment to himself r^ And in the same State, where an attachment was obtained on the ground that the " defendant had disposed of his property in whole or in part with intent to defraud his creditors ;" and the defendant brought an action against the attachment plaintiff for wrongfully suing out the attachment ; it 1 Winchester v. Cox. 4 G. Greene, 121 ; » Post, § 409. Malinke v. Damon, 3 Iowa, 107. * Vorse v. Phillips, 37 Iowa, 428. - r,iirton V. Knapp, 14 Iowa, 196; Nord- & Carey v. Gunnison, 51 Iowa, 202. haus V. Peterson, 54 Ibid. G8. [152] CHAP. VI.] ATTACHMENT BONDS. § ITO h was held, that it was error for the court to instruct the jury that if the defendant had not so disposed of his property he was entitled to recover ; and that to justify a recovery on the attachment bond it must appear not only that the ground alleged for suing out the attachment did not exist, but that the attachment plaintiff had no reasonable cause to believe that it existed. ^ § 170 h. In connection with the matter of action on the bond may properly be considered the question whether the attachment defendant may set up, by way of set-off or counter-claim, against the plaintiff's action, a claim under the bond for damages for a wrongful attachment. In some States this is expressly authorized by statute ; but where not so authorized can it be done ? This must depend on the statute of set-off in each State. As a gen- eral proposition, unliquidated damages cannot be set off; but where the statutory terms allow it, there would seem to be no good reason why that recourse should be denied to the defendant in a wrongful attachment. In Pennsylvania unliquidated dam- ages may be set off, where they arise ex contractu, and are capable of Hquidation by any known legal standard ;2 and there, under a bond conditioned for the payment to the defendant of all legal costs and damages which he might sustain by reason of the attach- ment if the plaintiff fail to prosecute the attachment with effect, it is held, that the defendant may set off against the plaintiff's action the damages he sustained by the wrongful attachment; and the court said : " After the giving of the bond in the attach- ment proceeding, the seizure of the defendant's goods was not a tort, but a perfectly lawful act. If any damages resulted there- from to the defendant, the plaintiff was bound by his contract, to wit, the bond, to pay the amount thereof to the defendant. The defendant, in order to recover those damages, would neces- sarily be obliged to bring an action on the bond. This being so, it is perfectly clear that his right of action against the plaintiff is not for damages for a trespass, but damages for breach of the condition of the bond. The right is ex contractu and not ex delicto. While it is true the damages are unliquidated, they are capable of liquidation by proof, and therefore the right to set them off in this action comes clearly within the adjudicated cases." ^ 1 Nordliaus v. Peterson, 54 Iowa, 68. ^ piunkett v. Sauer, 101 Penn. State, - Hunt V. Gilmore, 59 Penn. State, 356. 450 ; Halfpenny v. BeU, 82 Ibid. 128. [153] § 173 ATTACHMENT BONDS. [CHAP. VI. § 171. In an action on the bond, where, in the attachment suit, the proceedings were entirely ex parte^ it is not sufficient merely to assign, as a breach of the condition, that the defendant did not owe the debt for which the attachment was sued out ; he must set forth the proceedings under the attachment, and show that a judgment was given against him, and his property used to satisfy it ; that he did not owe the debt ; and that the attachment and judgment were illegal.^ § 172. Where the cases in which an original attachment may issue are different from those authorizing an auxiliary or ancillary attachment, — a writ taken out in aid of a pending suit instituted by summons, — and the plaintiff in an oricjinal attachment is sued on his bond, he cannot, as a defence thereto, show that, when he obtained the attachment, facts existed which, under the law, would have justified an ancillary attachment.^ § 173. Where an attaching plaintiff complies with all the re- quirements of the law in procuring an attachment, the presump- tion is, that it is rightfully sued out ; and if the defendant, in an action on the bond, claims that it was wrongfully done, the bur- den is upon him to establish that fact. Not that he must neces- sarily do it by positive testimony ; .but it may be shown by proof of such facts and circumstances as tend to establish the wrongful character of the act.^ The failure of the attaching plaintiff to sustain his action is undoubtedly 2yrimd facie evidence in support of the defendant's action on the bond ; but it is not conclusive proof that the attachment was either wrongfully obtained, in the sense of being merely obtained without sufficient cause, though without malice,^ or that the attachment j)laintiff acted wilfully wrong, that is maliciously, in suing it out.^ The latter position will undoubtedly hold good in all cases, without regard to the particular manner in which the attachment suit was terminated in favor of the defendant ; but it is deemed quite as certain, that, in an action in the former class of cases, where malice is not in- 1 Hoshaw V. Hoshaw, 8 Blackford, 258. Smitli, 53 Ibid. 2G2 ; Boatwright v. Stew- 2 Reynolds v. Culbrcath, 14 Alabama, art, 37 Arkansas, 614. 581. ^ Sackett i*. McCord, 2.0 Alabama, 851. 8 Veitlis n. Hagpe, 8 Town, 16.": Bur- 5 Kaver v. Webster, 3 Iowa, 502. rows V. Lelindorfr, Ibid. "JG ; Dent v. [154] CHAP. VI.] ATTACHMENT BONDS. § 173 h volved, and only the wrong of the attachment is to be estabhshed, if the suit was terminated hij a finding in favor of the defendant, on an issue as to the truth of the faets alleged as the ground for the attachment, then the judgment would conclusively establish that the attachment was wrongfully obtained.^ So, if there was, when the attachment was obtained, no debt due from the defendant to the plaintiff.^ But so far as the amount of the claim of the attachment plain- tiff is involved in the question of the defendant's recourse upon the bond, the judgment in the attachment suit is conclusive ; and if that be for a less sum than the law allows an attachment to issue for, it is complete evidence that the attachment was wrong- fully obtained ; though it does not settle the question of wilful wrong ou the part of the attachment plaintiff.^ § 173 a. In an action on the boijd it is no defence that the return on the attachment does not show a levy made according to the statute, if a levy de facto was made. Nor is it a justifica- tion or mitigation of damages, that the claim sued on was a just one, where the statutory ground for suing out the attachment did not exist ; for the claim may be just, and yet the attachment wrongful, and even wilfully wrong.* And where, to obtain an attachment of certain propert}^ the attaching creditor averred it to be the defendant's, he cannot, when sued on the bond, set up as a defence that it was not.^ § 173 b. If there be no levy of the attachment, there could, of course, be no recourse on. the attachment bond in respect of damages on account of detention of property. But in Alabama it is held, that in such case special damage, such as injury to the defendant's credit, resulting from the mere issue of the writ, may be recovered; and that garnishment under the writ is, in effect, a levy, though the garnishee be not indebted to the defendant, and be discharged on his answer.^ 1 Mitchell V. Mattingly, 1 Metcalfe ^ Gaddis v. Lord, 10 Iowa, 141. See (Ky.), 237; Boatwright v. Stewart, 37 pnst,^lU. Arkansas, 614. ■* Drummond v. Stewart, 8 Iowa, 341. 2 Lockhart v. Woods, 38 Alabama, ^ Brandon v. Allen, 28 Louisiana An- 631 ; Tucker v. Adams, 52 Ibid. 254. nual, GO. 6 Flournoy v. Lyon, 70 Alabama, 308. [155] § 175 ATTACHMENT BONDS. [CHAP. YI. § 174. In an action on the bond, the attachment plaintiff can- not excuse himself, because, in obtaining the attachment, he acted in good faith ; ^ nor is the matter of probable cause involved, except in relation to the question of damages ; and where the affi- davit avers the existence of the ground for attachment, and not the plaintiff's behef of its existence, no belief of the attachment plaintiff, however firm and sincere, that he had good ground for obtaining the attachment, can affect the defendant's right to recover against him the actual damage he has sustained.^ And in order to such recovery, it is not necessary for the defendant to show that he has paid the actual damages he has sustained.^ And in Missouri it was held, that evidence of special damages, such as expenses of travel and attorney's fees, paid out in defence of the attachment suit, cannot be given under a general aver- ment of damages, but must be specially averred. Said the court : " Damages are either general or special. General damages are such as the law implies or presumes to have accrued from the wrong complained of. Special damages are such as really took place and are not implied by law. But when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, it is essential that the resulting damage should be shown with particularity in order to prevent surprise to the defendant, which might otherwise ensue on the trial." ^ After- wards the same court held special damages recoverable under an allegation that the attachment defendant " was compelled to and did lay out and expend large sums of money, and was put to great expense and trouble in and about defending said action of attachment."^ § 175. What is this actual damage ? On general principles it must be the natural, proximate, legal result or consequence of the wrongful act. Remote or speculative damages, resulting from injuries to credit, business, character, or feelings, cannot be recovered.6 In IVIississippi, under a statute which authorized 1 ClmrchiU V. Abraham, 22 Illinois, ^ Metcalf v. Young, 43 Alabama, G43 4C5 * State V. Blaokman, 51 Missouri, 319. 2 Alexander v. Hutchison, 9 Alabama, » Kelly v. Beauchamp, 59 Missouri, 825; Donnell v. Jones, i:^. Ibid. 490; Met- 178. calf V. Younp, 43 Ibid. 043 ; Durr v. Jack- « Reidhar v. Berger, 8 B. Monroe, son, 59 Ibid. 203; Pollock v. Gantt, 09 100; State v. Thomas, 19 Missouri, 013 ; Ibid 373; Pettit u. Mercer, 8 B.Monroe, DcmncU v. Jones, 13 Alabama, 490; 51 Floyd V. Hamilton, 33 Ibid. 235; Iliggins [156] CHAP. VI.] ATTACHMENT BONDS. § 176 "loss of trade and special injury to business" to be considered, it was held, that contingent and uncertain profits, and losses of profits in speculative trade, could not be allowed.^ In Ohio, where a stock of goods kept for sale by retail was seized, and the defendant's business consequently suspended, it was held, that the jury might allow for natural and necessary loss of business during the time the same was suspended ; but not for injury to the reputation of the goods, supposed to affect their marketable value.2 Actual damage may be properly comprehended under two heads: 1. Expense and losses incurred by the party in making his defence to the attachment proceedings ; and 2. The loss occasioned by his being deprived of the use of his property during the pendency of the attachment, or by an illegal sale of it, or by injury thereto, or loss or destruction thereof.^ For losses and trouble of these descriptions, the attachment defendr ant should \m liberally remunerated.^ But if the property attached was not the defendant's, he can recover no damages.^ § 176. Under the first head will be allowed costs and expenses incurred in procuring the discharge of the attachment, and the restoration of the attached property ; ^ costs and expenses in obtaining testimony on a trial of the truth of the aSidavit on which the attachment was issued ; '^ costs of suit to which the defendant has been subjected,^ as well in an appellate court as in that in which the suit was brought;^ and fees paid to counsel for services in defending the attachment suit ; ^^ but not fees V. Mansfield, 62 Ibid. 267 ; Pollock v. where a garnishee was summoned, that Gantt, 09 Ibid. 373 ; Holliday v. Cohen, an element of damage recoverable was 34 Arkansas, 707 ; Oberne v. Gaylord, 13 loss of interest on the debt of the gar- Bradwell, 30; Campbell i'. Chamberlain, nishee to the defendant pendente lite. 10 Iowa, 337. State v. Beldsmeier, 56 Missouri, 226. 1 Myers v. Farrell, 47 Mississippi, 281. ■* Offutt v. Edwards, 9 Eobinson (La.), See Lowenstein v. Monroe, 55 Iowa, 82. 90 ; Campbell v. Chamberlain, 10 Iowa, 2 Alexander v. Jacoby, 23 Ohio State, 337 ; Lawrence n Hagerman, 56 Illinois, 358. See Holliday v. Cohen, 34 Arkansas, 68. 707 ; Oberne v. Gaylord, 13 Bradwell, ^ pjnson v. Kirsh, 46 Texas, 26. 30. 6 Alexander v. Jacoby, 23 Ohio State, 3 Cox V. Robinson, 2 Robinson (La.), 358. 313 ; Horn v. Bayard, 11 Ibid. 259 ; Pettit ' Hayden v. Sample, 10 Missouri, 215. V. Mercer, 8 B. Monroe, 51 ; Reidhar v. ^ Dunning v. Humphrey, 24 "Wendell, Berger, Ibid. 160 ; McReady v. Rogers, 31 ; Winsor v. Orcutt, 11 Paige, 578 ; 1 Nebraska, 124; Holliday v. Cohen, 34 Trapnall v. McAfee, 3 Metcalfe (Ky.), Arkansas, 707 ; Boatwright v. Stewart, 37 34. Ibid. 614 ; Sanford v. Willetts, 29 Kansas, 9 Bennett v. Brown, 31 Barbour, 158 ; 647 ; Marqueze v. Southeimer, 59 IMis- 20 New York, 99. sissippi, 430. In Missouri it was held, ^ Offatt v. Edwards, 9 Robinson (La.), [157] § 176 ATTACHMENT BONDS. [CHAP. YI. to counsel employed by the attachment defendant to defend the garnishee from liability ; ^ nor fees to counsel for services in the action on the bond.^ In Texas, the court refused to allow at- torney's fees, because it regarded them in the nature of exemplary damages, and because the defendant must have incurred that ex- pense in defending the action, whether an attachment had been sued out or not.^ And in that State the court refused to allow for the party's time spent and expenses incurred in attending court in defence of the suit."* Where the attachment is not the original process, but is ancillary to an action instituted by summons, no costs or expenses connected with the defence of the suit, in aid of which the attachment was obtained, can be recovered.^ Where, however, the suit is instituted by attachment, if the action be sus- tained, but the attachment defeated, the rule in Indiana is, that the attorney's fees for defending against the attachment should be allowed, but not those for defending the action ; but where both the action and the attachment are defeated because there was no foundation for the former, the attorney's fees for defending both the action and the attachment may be allowed.*' When it is sought to recover for counsel fees in defending the attachment, it is held, in Kentucky, that no recovery can be liad unless the fees were paid, or contracted to be paid, and are proved to be reasonable." As to costs, the Court of Appeals of that State held, that if the whole costs turn upon the defence of the cause of action, they are not recoverable upon tlie attachment bond ; if incurred in defending the cause of attacliment alone, they are recoverable ; if incurred partly in defending the cause of action, and partly in defending the cause of attachment, they are recover- 90; Littlejohn r. "Wilcox, 2 Louisiana Hays v. Anderson, Ibid. 374; Flournoy Annual, G20 ; Phelps ;;. Coggeshall, 13 v. Lyon, 70 Ibid. 308. Ibid. 140; Accessory Transit Co. v. Mc- - Offutt v. Edwards, 9 Robinson (La.), Ccrren, Ibid. 214; Trapnall r. McAfee, 00; Plumb r. Woodmansee, 34 Iowa, IIG; 3 Metcalfe (Ky.), 34; Seay i'. Greenwood, Vorse v. Phillips, 37 Ibid. 428 ; Hays v. 21 Alabama, 491 ; Burton v. Smith, 49 Anderson, 57 Alabama, 374 ; Copeland v. Ibid. 203 ; Higgins r. Mansfield, 02 Ibid. Cunningham, Go Ibid. 394. 2G7; Dothard v. Sheid, 09 Ibid. 135; » Hughes v. Brooks, 36 Texas, 379. Swift V. Plessner, 39 Mi'^higan, 178; Ray- See Littleton v. Frank, 2 Lea, 300. mond V. Green, 12 Nebraska, 215 ; North- < Harris v. Finherg, 4G Texas, 79 ; Crad- rup r. Garrett, 24 New York Supreme dock v. Goodwin, 54 Ibid. 578. Ct. 497 ; Baere v. Armstrong, 33 Ibid. ^ White v. ^Vyley, 17 Alabama, 1G7. 10; Vorse r. Phillips, 37 Iowa, 428 ; Jlor- " Wilson v. Root, 43 Indiana, 48G. See ris !". Price, 2 Blackford, 457. Sed contra, Behrens v. McKenzic, 23 Iowa, 333. Heath r. Lent, 1 California, 410. "^ Shultz v. Morrison, 3 Metcalfe (Ky.), » Pounds V. Ilamner, 57 Alabama, 342; 98. [158] CHAP. VI.] ATTACHMENT BONDS. § 178 able only so far as incurred in defence of the attachment.^ And so, in effect, in Ohio.^ In Alabama, in regard to counsel fees paid by the attachment defendant in the defence of the attachment suit, it is held, that such fees in defending the case on appeal to the Supreme Court cannot be recovered as general damages, but must be claimed as sjyecial damages.^ § 177. The rule of damages under the second head has been variously laid down. In New York, it was said by the Supreme Court : " The plaintiff is entitled to such damages as a jury may think he has sustained by the wrongful seizing and detaining of his property. If it was taken out of his possession, he may be entitled to the value of it ; if seized and left in his possession, to such damages as may be awarded for the unlawful intermeddling with his property." ^ But the same court afterwards held, that no more than nominal damages can be recovered, where the de- fendant is not dispossessed.^ In Iowa it was held, that where a stock of goods was attached, under a writ wrongfully sued out, the measure of damages therefor is the cost of replacing them at the place where they were levied on.^ § 178. In Kentucky, it was determined that the plaintiff can only recover damages for the injury he has sustained by being deprived of the use of his property, or its loss, destruction or deterioration." Subsequently, the court stated the rule on some points more specifically, and said: " The inquiry in regard to the injury which the party may sustain by the deprivation of the use of his property, should be limited to the actual value of the use ; as, for example, the rent of real estate, the hire of services of slaves, or the value of the use of any other species of property in itself productive. The property in this case was not of that character, and the injury from being deprived of its use should be restricted to the interest on the value thereof. For any injury beyond that, the damages would be conjectural, indefinite, and uncertain, 1 Johnson v. Farmers' Bank, 4 Bush, * Dunning v. Humplirey, 24 Wendell, 283. 31. 2 Alexander v. Jacoby, 23 Ohio State, ^ Groat v. Gillespie, 25 Wendell, 383. 358. 6 Selz V. Belden, 48 Iowa, 451. 3 Dothard v. Sheid, 69 Alabama, 135. '' Pettit v. Mercer, 8 B. Monroe, 51. See Wallace v. Finberg, 46 Texas, 35. [159] § 179 a ATTACHMENT BONDS. [CHAP. VI. and the plantiff cannot recover in this action. If, however, the property is damaged, or if when returned it should be of less value than when seized, in consequence of the depreciation in price, or from any other cause, for such difference the plaintiff would be entitled to recover. But this rule, so far as it relates to the fall or depreciation of the price, would not be applicable to every species of property. It would, liowever, clearly apply in this case, as it was the trade and business of the party to vend the goods attached, and not to keep them for mere use." ^ In Missis- sippi, it was decided that where, between the levy and the dis- solution of the attachment, the goods levied on had depreciated in market value, the defendant was entitled to recover the amount of the depreciation.2 And so in Cahfornia,^ and Iowa."* But such depreciation should be specially pleaded.^ In Kansas, where a herd of cattle were attached, and removed from the range where they had been kept, and placed in charge of a herder on a new range, where both grass and water were limited and poor, and consequently they failed to make the growth in weight which, kept as they had been, they would ordi- narily, during the time of such detention, make, if left upon the range from which they were taken ; it was held, that, though they did not lose in weight, yet the failure to make the ordinary and expected increase in weight, was a gain prevented, for which the owner was entitled to compensation, if the attachment was wrongfully obtained.^ § 179. The court properly intimated, in the language just quoted, that the allowance for depreciation in the value of the property while under. attachment would not be applicable to every species of property. For instance, if real estate be at- tached, without interfering with the defendant's possession, noth- ing can be recovered in an action on the bond, on account of depreciation in its value during the pendency of the attachment.' § 179 a. When through a wrongful attachment the defendant's property is wholly lost to him, he is entitled to recover on the at- 1 Reitlhar v. Berper, 8 B. Monroe, IGO; » Frankel r. Stern, 44 California, 1G8. Carpenter v. Stevenson. Bush, 250. See * I.owcnstfin v. Monroe, 55 Iowa, 82. Holliday v. Cohen, 34 Arkansas. 707. '" AVailucc v. Finberfi. 4G Texas. 35. ■-' Fleming v. Bailey, 44 Mississippi, ^ IIo^'e v. Norton, 22 Kansas, 374. 132. ^ Heath v. Lent, 1 California, 410. [160] CHAP. VI.] ATTACHMENT BONDS. § 180 tachment bond the value of it when attached, with interest ; but if the property was sold by order of the court, and the proceeds applied upon the judgment obtained in the attachment suit against the defendant, the amount of the proceeds must be deducted from the value found.^ § 179 b. In California, where the attachment defendant was engaged in the dairy and farming business, and his wagons, horses, cows, and other personal property, were seized under an attachment, and were detained more than two months, when they were released by a judgment in favor of the defendant ; who thereupon sued on the plaintiff's undertaking to " pay all damages which the defendant may sustain by reason of the attachment ; " it was held erroneous to charge the jury that the measure of damages was what the use of the property was worth to the attachment defendant during the time he was deprived of it; and that in ascertaining the value the jury should con- sider how he could and would have used the property had it not been taken from him. This was, the court said, " substitut- ing a speculation and peculiar measure of damages for the true rule, which, as applied to the case, was what the use of such property could have been procured for, — in other words, the market value.^ § 180. In Louisiana the following case arose. Certain parties took out an attachment in February, 1842, against the Girard Bank, and seized certain chases in action, which, at the time, and for some months after, were worth in New Orleans 818,500. In August, 1842, the attachment plaintiffs, having obtained judg- ment, caused the chases in action to be sold by the sheriff, at a great sacrifice, for the sum of 89,140. Afterwards, the judgment was reversed, and the assignees of the bank sued the attachment plaintiffs for the difference between these sums, and recovered judgment for 85,145 damages. Whether the suit was on the attachment bond does not appear in the report of the case. The Supreme Court affirmed the judgment, holding the plaintiffs entitled to recover the actual damage sustained.^ 1 Boatwright r. Stewart, 37 Arkansas, ^ Horn v. Bayard, 11 Robinson (La.), 614. 259. - Hurd V. Barnhart, 53 California, 97. 11 [IGl] § 182 ATTACHMENT BONDS. [CHAP. VI. § 181. In New York, an action was brought on an attachment bond, where it appeared that the plamtiff in the attachment was nonsuited ; but immediately after sued out another attachment, and seized the same property that was attached in the first suit ; and afterwards, on obtaining judgment, caused the property to be sold under his execution. It was held, that the application of the defendant's propert}'- to the satisfaction of the judgment in the second suit, was properly admissible in evidence, to reduce the amount of damages sought to be recovered.^ § 181 a. A frequent result of the issue of one attachment against a debtor is for several others, in favor of different creditors, to be obtained. If the defendant succeeds in defeating the first, he may seek to make that creditor responsible for all the damages resulting from all the attachments, because he made the first attack. The Supreme Court of Mississippi met such an attempt with the following remarks : " As a rule, every one is liable for his own wrong, and not for that of another. A wrong-doer is responsible for the consequences produced by his own act, but not for what others, acting independently of him and. for them- selves, may do, even though his act may be the occasion of their doing what they do. That another independent agent, acting on his own responsibility, does something, because one has done a particular thing, does not make such one responsible for the act of the other. They are independent actors, and each is answerable for his own acts, because of the want of causal con- nection between the acts. Consecutive wrongs done by indepen- dent agents cannot be conjoined to increase or enlarge the responsibility of one of them. If others attach, after another, and because he has attached, they are responsible severally for what they do, and the first attaching creditor is not responsible for any injury occasioned by the acts of the others, although they merely followed his example."^ § 182. The liability of an attachment plaintiff for actual damage exists as well where the attachment is sued out by his attorney as where he obtains it liimself ; but no malice exhibited by the attorney in his proceedings can be given in evidence against 1 Earl V. Sponner, 3 Denio, 246. ^ Marqucze v. Sonthcimer, 59 Missis- sippi, 430. [162] CHAP. VI.] ATTACHMENT BONDS. § 183 his client, so as to make him Kable for exemplary damages.^ And where the attachment was taken out by an agent, who also exe- cuted the bond, the declaration on the bond was held to be insuificient, which charged that the attachment was wrongfully and vexatiously sued out by the obligors in the bond ; it should have averred that it was so sued out by the plaintiff.^ § 183. An administrator who sues out an attachment and executes the bond, describing himself therein as administrator, cannot be sued on the bond in his representative character, nor can he subject the estate to an action for damages by his tortious conduct. He is liable to respond personally for the injury, and is properly sued in his individual character.^ 1 Kirksey v. Jones, 7 Alabama, 622; ^ McCullough v. Walton, 11 Alabama, McCuUough V. Walton, 11 Ibid. 492. 492 ; Wallace v. Finberg, 46 Texas, 35. 3 Gilmer v. Wier, 8 Alabama, 72. [168] § 184 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. CHAPTER VII. EXECUTION AND RETURN OF AN ATTACHMENT. § 183 a. The power and duty of an officer to make an attach- ment depend upon his possession of process authorizing it. The duty may be quahfied, or he may be relieved of it altogether, by instructions ; but it exists only while the power exists, and both come into existence when the process is placed in his hands. Until then he has no authority to act, and cannot be justified in interfering with the property of others, though he have informa- tion that the process has been issued. Thus, in Connecticut, an officer lodged with the town clerk a certificate that he had at- tached certain real estate of a defendant in an attachment suit ; which, if the writ had been in his possession, would, under the law of that State, have constituted a valid attachment ; but it appeared that, when he so lodged the certificate, he had no writ in his hands, and did not receive any till the day after that on which the lodgment of the certificate was made, but acted upon information that a writ had been issued ; and it was held that there was no valid attachment.^ § 183 b. A writ of attachment made returnable to a day and a term of court past at the time of its issue, is void on its face, and all proceedings thereunder are void.^ § 184. When a writ of attachment is placed in the hands of an officer to be executed, his first duty — which he canno* ever safely overlook — is, to ascertain that it was issued by an officer having legal power to issue it ; for if issued by one having no such power, it is absolutely void, and will afford no protection whatever to him who acts under it. Nor can the court out of * Wales V. Clark, 43 Conn. 183. ^ Holzman v. Martinez, 2 New Mexico, 271. [164] CHAP. VII.J EXECUTIOX AXD RETURN OF ATTACHMENT. § 185 which it purported to have issued acquire through it, or throusfh the judgment in the case, any right to control the disposition of the money accruing from a sale of attached property. Thus, where an attachment was issued by the clerk of a court, who had no lawful authority to issue it, and under it property was seized and sold, and the proceeds thereof were placed in the hands of the clerk as an officer of the court ; and the court ordered a part of the money to be paid to the landlord of the building in which the attached goods were found, as rent due him therefor from the attachment defendant ; it was held, that the money was in the hands of the clerk as an individual bailee, and was not subject to the order of the court, and that the order, not being within the jurisdiction of the court, was void.^ § 184 a. If the writ be so defective that it is void, a levy under it cannot be cured by amendment, so as to cut off the rights of third parties in the attached property, acquired after the levy. In Maine there is a statute providing that no attachment "shall be valid, unless the plaintiffs demand on which he founds his action, and the nature and amount thereof, are substantially set forth in proper counts, or a specification of such claim shall be annexed to such writ." The Supreme Court of that State held that a writ based on a money count containing no specifica- tion of the nature and amount of the plaintiff's demand, is void ; ^ and that an amendment of the writ before judgment will not make it so far valid as that the title acquired under it will pre- vail against a mortgage executed between the service of the writ and the judgment.^ § 185. If the writ be in legal form, and issued out of a court having competent jurisdiction, it will be a complete justification to the officer in attaching the defendant's property, and in using, to effect the attachment, all necessary force ; and there can, therefore, be no obligation on him to investigate whether the preliminary steps required for obtaining it have been pursued.* ' Goldsmith v. Stetson, 39 Al.ibama, Ossood v. Holyoke, 48 Ibid. 410 ; Xeally 183. Nor can the money, in suoli case, v. Judkins, Ibid. 566 ; Hanson i-. Dow, 51 be reached by creditors of the attaclmient Ibid. 165. defendant by garnishment of tlie clerk. ^ Prew v. Alfred Bank, 55 Maine, 450. See post, § 545. ^ Fulton v. Heaton, 1 Barbour, 552 ; 2 Saco V. Hopkinton, 29 Maine, 268; Kirksey v. Dubose, 19 Alabama, 43; [165] § 185 5 EXECUTION AND RETURN OF ATTACHME«NT, [CHAP. VII. And though the process may be erroneous and voidable, that fact will neither prevent him from protecting himself by it, nor jus- tify him in omitting to do his duty in its execution.^ Nor has he anything to do with the question whether the debt is actually due. It may be that no cause of action exists ; but with that he has no concern ; for it is not his province to decide the question of liability between the parties.^ § 185 a. When the officer attaches property found in the pos- session of the defendant, he can always justify the levy by the production of the attachment writ, if the same was issued by a court or officer having lawful authority to issue it, and be in legal form. But when the property is found in the possession of a stranger claiming title, the mere production of the writ will not justify its seizure thereunder; the officer must go further, and prove not only that the attachment defendant was indebted to the attachment plaintiff, but that the attachment was regularly issued.^^ If, in the attachment suit, judgment was rendered for the plaintiff, that will establish the indebtedness; if not, the officer must prove it otherwise, in order to justify his proceed- ing.* Of course, the party whose property has been wrongfully taken may prove that there was no indebtedness.^ § 185 h. Though a writ issued by competent authority, and regular on its face, will afford protection to an officer acting under it, it does not, if issued irregularly, afford the same protec- tion to the party who caused its issue. The responsibility rests Banta l^ PveynoUls, 3 B. Monroe, 80 ; Gar- 3 Thornburgh v. Hand, 7 California, net r. Wimp, Ibi.i 360; Ela v. Shepard, 554; Noble v. Holmes, 5 Hill (N. Y.), 32 New Ilamp. 277; Owens v. Starr, 2 194; Van Ettcn v. Hurst, G Ibid. 311; Littoll, 230; Lovier v. Gilpin, 6 Dana, Matbews y. Densmore, 43 Michigan, 401. ,321- Walker y. Woods, 16 California, G6; « Damon i'. Bryant, 2 Pick. 411; Booth V. Rees, 26 Illinois, 45 ; State v. Kinchey v. Stryker, 28 New York, 45 ; Foster 10 Iowa, 435 ; Lashus v. Matthews, Sexey v. Adkinson, 34 California, 340 ; 75 Maine, 446. Miller v. Bannister, 109 Mass. 289 ; Braley i' StevJnson v. McLean, 5 Humphreys, r. Byrnes, 20 Minnesota, 435 ; Ilincs v. 332 ■ Reams r. McNail, 9 Ibid. 542 ; Shaw Chambers, 29 Ibid. 7 ; Maley v. Barrett, V. Holmes, 4 Ileiskell, 692; Bogert v. 2 Sneod, 601; Cross r. Phelps, 16 Bar- Phelps 14Wiscon.sin,88; Cross y. Phelps, hour. 502; Jones v. Lake, 2 Wisconsm, 16 Barbour, 502; Babe i-. Coyne, 53 Call- 210; Norton i-. Kearney, 10 Ibid. 443; fornia, 261. Bogert v. Phelps, 14 Ibid. 88. 2 Livingston v. Smith, 5 Peters, 00 ; & Cook v. Hopper, 23 Michigan, 511. Walker v. Woods, 15 California, 06; Mamlock v. White, 20 Ibi Vermont, 508. tiff. He is responsible to both parties for * Fage v. Belt, 17 Missouri, 2G3. [172] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 191 a unnecessary delay in seizing property or summoning garnishees the plaintiff loses his debt, the officer will be liable ; and his liability will not be avoided by his showing that he was not specially required to serve the writ immediately, or that it was in fact served within the time authorized by its terms.^ And after the attachment is Ijegun, it should be continued with as little interruption as possible. Delay or interruption in the discharge of this duty may involve the officer in serious consequences. No general rule governing such cases can well be laid down ; but each case must depend very much on its particular circumstances. As a proposition generally applicable, however, it may be said that the officer should take care that his levy be a continuous and single act, as contradistinguished from a number of distinct acts, performed at different times, and not in reasonable and necessary connection. § 191 a. While the law holds an officer to a strict performance of his duty in the execution of process placed in his hands, and tolerates no wanton disregard of that duty, nor sanctions any negligence, yet it requires no impossibilities, nor does it impose unconscionable exactions. When an attachment comes to his hands, he must execute it witli all reasonable celerity ; but he is not held to the duty of starting, on the instant after receiving it, to execute it, without regard to other business demanding his attention, unless some special reasons for urgency exist, and are made known to him. Reasonable diligence is all that is required of him in such a case ; and what is reasonable diligence depends upon the particular facts of the case. If, for example, an officer receives no special instruction to execute a writ at once, and there is no apparent necessity for its immediate execution, it would not be contended that he was under the same obligation to execute it instantaneously as if he were so instructed, or there were apparent circumstances of urgency. But in the case of an attachment sued out on the ground of the defendant's fraud, or his being in the act of leaving the State, or removing his property, the very fact of the issue of the writ on such ground would seem to indicate to the officer the necessity for immediate action. These views were applied, in California, to a case where a writ was placed in the hands of a sheriff between nine and ten o'clock ^ Kennedy v. Brent, 6 Crancli, 187. [173] § 193 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. on a Sunday night, and another writ was delivered to a deputy of his, at fifteen minutes after twelve o'clock, and was executed by the deputy at one o'clock on Monday morning; of which second writ the sheriff had no knowledge until after it was exe- cuted ; and the service by the deputy held the property in favor of the second attachment. The plaintiff in the first attachment sued the sheriff for not levying it in due time ; but it was held, that the attachment was not legally in his hands until the expi- ration of Sunday, and that his delay in executing it, for one hour after midnight, did not entitle the plaintiff to recover.^ § 191 h. It not unfrequently happens that no property is found whereon to levy an attachment, and the action proceeds to judgment under the summons. In such case the rendition of the judgment supersedes the attachment, and thereafter no action can be taken under it.^ § 192. Where a variety of articles are attached, and it requires considerable time to complete the service of the process, if the ofiicer, after he has begun it, continues in it with no unnecessary delay until he has secured all the goods, the taking is to be treated as one act. But where an ofiicer took and removed sun- dry finished carriages, to an amount which he deemed sufficient to secure the demand in the writ, and, on the day following, having changed his mind in regard to some of the property, he determined not to take away a part of the finished carriages he had attached, but, in lieu thereof, to make another attachment of unfinished work, which he did, and then removed the unfinished work, with part of that first attached ; it was held, that the attachment might properly be considered as consisting of two distinct acts.^ § 193. An attachment levy effected by unlawful or fraudulent means is illegal and void. Such, for example, is the case of entering a dwelling-house against the owner's will, and attaching his property there ; to which more particular reference will pres- ently be made.'* Such, too, is the case of a plaintiff fraudulently 1 Whitney v. Butterfield, 13 California, » Bishop v. Warner, 19 Conn. 460. 335. , § 200. ■^ Scheib v. Baldwin, 22 Howard Pract. 278. [174] CHAP. VII.] EXECUTION AND EETUEN OF ATTACHMENT. § 193 obtaining possession, in one State, of the propert}- of his debtor, and removing it clandestinely into another State, and there attach- ing it.i So, likewise, where the plaintiff decoyed a slave from one State into another, for the purpose of attaching him for the debt of his owner.2 So, where the officer watched the defendant at work in his field, where he might have served the writ upon him, but did not, and waited till the plaintiff's agent enticed the defendant out of the State, and then attached the defendant's real estate, '' for want of his body, goods, and chattels." ^ So, where a suit by attachment was brought in the United States Circuit Court for Louisiana, against one alleged to be a citizen of that State, and property was levied on in the interior of the State and brought to New Orleans ; and the plaintiff then dismissed that suit, and brought another in the State court, on the ground that the defendant was a non-resident of that State, and levied the attachment on the same property.* So, where a sheriff, in a county where he was not an officer, took property, under pre- tence of having a writ, and carried it to another county, in order to bring it within the reach of legal process.^ So where, on the suggestion of the counsel for the attachment plaintiff, a trunk was produced and opened, under cover and pretence of a criminal examination then progressing, but really for tlie purpose of levy- ing an attachment upon money contained in it.^ So, where a creditor and his debtor lived in the State of New York, where the latter owned a team, which, by the law of that State, was not attachable ; and the creditor, for the purpose of enabling himself to attach it in Massachusetts, caused false representations to be made to the debtor, which induced him to take the team into that State, where it was attached ; it was held, that the attach- ment was void, and that both the creditor and the officer who made the attachment were liable as trespassers, though the latter did not know of the fraud, and simply obeyed the terms of his precept." It was attempted, in Massachusetts, to apply the principle of these decisions to the case of an officer who had levied an attach- 1 Powell V. McKee, 4 Louisiana An- " Nason v. Esten, 2 Rliode Island, 337 ; nual, 108 ; Paradise v. Farmers and Mer- Metcalf i'. Clark, 41 Barbour, 45. chants Bank, 5 Ibid. 710 ; Wingate r. * Gilbert v. Hollinger, 14 Louisiana Wheat, 6 Ibid. 238 ; Myers v. Myers, 8 Annual, 441. Ibid. 3(3'J. s Pomroy v. Parmlee, 9 Iowa, 140. - Timmons v. Garrison, 4 Humphreys, ^ Pomroy v. Parmlee, 9 Iowa, 140. 148. ^ Deyo v. Jenuison, 10 Allen, 410. [175] § 19J: EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. ment against A. on property whicli he immediately afterwards found not to be A.'s, but B.'s. Upon this appearing, the writ was amended by inserting the name of B., and the officer then, stating that he gave up his former levy, again attached the goods as the property of B. It was contended that he was a trespasser in the second levy, because he was so in the first, and that the first continued until the second was made ; but the court held, that as the first levy was not made /or the purpose of seizing the property under the second levy, and the latter was not effected by means of the former, he could not be charged as a trespasser in making the second levy.^ In any such case, whether the officer acted with such a purpose, is to be determined from all the facts ; and the presumption is in his favor.- § 194. In executing the writ, the officer should act in confor- mit}'' to the law under which he proceeds ; for, if the service be illegal, no lien is created on the property.^ He must also perform his duty in such a manner as to do no wrong to the defendant. On such occasions he must be allowed the exercise of some dis- cretion, and is not to be made liable for every trivial mistake of judgment he may make in doubtful cases. But the discretion allowed him must be a sound discretion, exercised with perfect good faith, and with an intent to subserve the interests of both the debtor and the creditor^ For, when an officer wholly departs from the course pointed out to him by the law, he may be con- sidered as intending from the beginning to do so, and as making- use of the process for a mere pretence and cover ; and, therefore, he is liable in the same manner, and for the same damages, as he would have been if he had done the same acts without the legal warrant he abused ; he will be considered a trespasser ab initio. In other words, he who at first acts with propriety under an authority or license given by law, and afterwards abuses it, shall 1 Gile r. Devens, 11 Cusliinp, 59. be a complete departure from the line . 2 Closson V. :Morrison, 47 New Hamp. of duty, or such an iini)roper and illegal 482. exercise of the autiiority to tlie prejudice 8 Gardner v. Hust, 2 Richardson, 001 ; of anotlier, — such an active and wilful Buckingham i-. Osborne, 44 Conn. 133. wron^' ]ierpetrated, — as will warrant tiie •» Barrett v. Wliite, 3 New Hamp. 210. conclusion tliat its perpetrator intended In Taylor v. Jones, 42 New Hamp. 25, from the first to do wrong, and to use the court said : " Such an error or mis- his legal autiiority as a cover for his tiike as a person of ordinary care and illegal conduct. Wiiere the acts proved common intelligence might commit, will warrant no such conclusion, the person not amount to an abuse; but there must chartj^cd wiiii ihem is not a trespasser." [176] CHAP. VII.] EXECUTION AND RETUEN OF ATTACHMENT. § 195 be considered a trespasser from the beginning.^ The reason of this rule is, that it would be contrary to sound public policy to permit a man to justify himself at all under a license or authority allowed him by law, after he has abused the license or authority, and used it for improper purposes. The presumption of law is, that he who thus abuses such an authority, assumed the exercise of it, in the first place, for the purpose of abusing it. The abuse is, therefore, very justly held to be a forfeitui'C of all the protec- tion which the law would otherwise give. Therefore, where an officer attached certain hay and grain in a barn, and, without any necessity, removed the same from the barn at an unfit and unrea- sonable time, when it must inevitably be exposed to great and unnecessary waste and destruction, it was held, on the principles above stated, to be such an abuse as to render the officer a tres- passer ab initio.^ § 194 a. An officer executing lawful process in a lawful manner can never be a trespasser; even though he knew that the purpose of the plaintiff was, through the instrumentality of the attach- ment, to restore the property into the possession of other parties, from whom it was withheld by the defendant.^ But if lie act under unlawful process, or execute lawful process in an unlawful manner, he is a trespasser. And whenever he does such acts as authorize his being considered in law a trespasser ab initio, all acts done by him in the particular case are unlawful, and he may be held responsible therefor, just as if he had been devoid of any authority, seeming or real. If he has attached property, he can- not hold it if the defendant chooses to reclaim it ; or, if he hold it, is liable to the defendant for its value."^ But if the defendant receive back the property, or it was legally disposed of for his benefit, such fact would, in an action by him against the officer for the trespass, go in mitigation of damages.^ § 195. The officer should be careful not to levy the writ on any property not liable to attachment ; for if he do, he will be considered a trespasser.*' But if, in seizing an article, — as, for 1 Barrett v. White, 3 New Hamp. 210. * Collins v. Perkins, 31 Vermont, 624. 2 Barrett v. White, 3 New Hamp. 210; ^ Yale v. Saunders, 10 Vermont, 243; Peeler v. Stebbins, 26 Vermont, 644. Stewart v. Martin, Ibid. 397. 3 Wakefield v. Fairman, 41 Vermont, ^ Yoss v. Stewart, 14 Maine, 312 ; Bean 339. V. Hubbard, 4 Gushing, 85; Richards v. 12 [177] § 196 EXECUTION AND RETUEN OF ATTACHMENT. [CHAP. VII. instance, a trunk, — he is under a necessity of taking into his possession with it articles exempt from attachment, and if he intermeddles with them to no greater extent than to remove them from the trunk, and deliver them to the owner, or upon the owner's declining to receive them when offered, then to keep them safely until called for, he commits no wrong.^ And if the defendant assent to the attachment at the time, it will be valid ; and a subsequent assent will make it good ah initio? If the property is a part of a larger quantity than the law exempts, the defendant must set apart such portion as is exempted, and claim it as such, or he will be held to have consented to its being attached.^ § 196. If an officer attach personalty not the property of the defendant, he is, of course, a trespasser on the rights of the owner, who may maintain either trover, trespass, or replevin, against him. Such an attachment is a tortious act, Avhich is itself a conversion ; and if trover be brought, no demand on the officer need be proved .* And it is such an official misconduct as his sureties in his official bond are liable for.^ If he acts by the direction of the plaintiff,^ or of the attorney in the suit,' the plaintiff is regarded as equally guilty and equally liable for the trespass ; but not if he take no part in the levy ,8 unless he after- ward ratify it ; and he will be held to have ratified it, when he defends against a claim of property filed by the owner in the attachment suit.^ And against either officer or plaintiff, where both engage in the act, suit may be brought at once, without any demand or notice,!"^ and without the owner being under obligation Da<-"ott 4 Mass. 534 ; Gibson v. Jenncy, & People v. Schuyler, 4 Comstock, 173 ; loYbid 205; Kiff V. Old Colony, &c., Archer i^. Noble, 3 Maine. 418; Hams ;;. R R Co 117 Ibid. 591; Howard v. Wil- Hanson, 11 Ibid. 241 ; Connnon wealth v. liams 2 Pick. 80 ; Lynd v. Picket, 7 Min- Stockton, 5 Monroe, 192 ; State v. Moore, nesot'a 184- Cooper v. Newman, 45 New I'J Missouri, 300; State v. Fitzpatnck, 04 Hamp' 339 ' I"^'^'- ^^^ : ^'^"^ ^^^^^ ''• ^'"^^r, 14 Califor- 1 Towns' t'. Pratt, 33 New Hamp. 345. nia, 194; Sangster v. Commonwealth, 17 2 Hewes i'. Parkman, 20 Pick. 00. Grattan, 124. 3 Nash V Farrington. 4 Allen. 157; « Marsh v. Backus, 16 Barbour, 483; Clapp 1-. Thomas, 5 Ibid. 158; Smith v. Corner r. Mackintosh, 48 Maryland, 374. Chadwick, 51 Maine, 515. ' Oestrich v. Greenbaum, 16 New York * Woodbury v. Long, 8 Pick. 543; Supreme Ct. 242. Ford V. Dyer, 2G Mississippi, 243 ; Meade » Butler r. Borders, 6 Blackford, 100. V Smith 10 Conn. 340; Caldwell r. Ar- » Perrin ;;. Claflin, 11 IMissouri, 13. nold, 8 Minnesota, 205 ; Sangster r. Com- » Tufts v. McClintock. 28 Maine, 424 ; mon wealth, 17 Grattan, 124; Bodega v. Richardson v. Hall, 21 Maryland, 399. Perkerson, 00 Georgia, 516. [178] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 197 to take any steps in the suit in which the seizure is made ; ^ but if he take such steps, and chiim the property in the attachment cause, and recover judgment for its restitution, his right to recover damages for the illegal taking and detention will not be thereby impaired.^ If, however, after thus claiming the property, he agree with the other parties to the suit, that the officer may sell it, and hold the proceeds subject to the final decision of the controversy, it is considered, in Louisiana, to amount to a waiver of his claim against the officer for damages.^ If an officer levy on property not the defendant's, and after- wards, on his own motion, releases the levy, and the attachment plaintiff sues him therefor, the burden is on the officer to show sufficient cause for such release ; and if it appear that the prop- erty was, in fact, the defendant's, the officer will be held liable therefor to the attachment plaintiff.* § 196 a. That the defendant was not the owner of the property attached, is not good matter for a plea by the defendant in abatement of the suit.^ § 196 h. If several attachments be levied at different times on the same property, not being that of the defendant, it is held, in Maryland, that though the owner of the property may sue the officer in trespass for the original taking under the writs first levied, he cannot maintain the action for the subsequent levy under the last attachment, for then the property was already in custodia legis.^ § 196 c. In any case of an attachment of property not belonging to the defendant, if the property, being perishable, be sold by the officer, he cannot, when sued by its owner, charge the costs and expenses of the attachment and sale, against the fund arising from the sale J § 197. The necessity for the officer's making due inquiry con- cerning the property he attaches is so highly regarded, that he 1 Shuffr. Morgan, 9 Martin, 592. ^ King v. Bucks, 11 Alabama, 217; 2 Trieber v. Blacher, 10 Maryland, 14 ; Sims v. Jacobson, 51 Ibid. 186. Clark V. Brott, 71 Missouri, 473. ** Ginsberg v. Pobl, 35 Maryland, 505. 3 Judson V. Lewis, 7 Louisiana Annual, '^ Haywood v. Hardie, 76 North Caro- 65. Una, 384. * Wadsworth v. Walliker, 51 Iowa, 605. [179] § 198 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. YIL will be treated as a trespasser for seizing property not belonging to the defendant, even though the owner give him no special notice that the property is his, and make no demand for it.^ And the remedy of the owner against the officer is not impaired by the owner becoming the receiptor to the officer for the property ; for in such case the owner is bound by the terms of the receipt to retain the property and have it ready for deliver}^ on demand ; and in an action on the receipt would be estopped from setting up property in himself.^ § 198. What will amount to an attachment, for which trespass may be maintained, may admit of question. In Pennsylvania, the return by an officer that he had attached goods, which appear not to have been the defendant's, subjects the officer to an action of trespass, where the property was bound by the levy, and was in the officer's power, though there was no manual handling or taking them into possession.^ The same doctrine has been recog- nized in Massachusetts,^ and New Hampshire.^ But where an officer had a writ, and found the defendant in possession of prop- erty, and informed him that he was directed to make an attach- ment ; and the defendant informed the officer that the property was not his ; and the officer did not take it or interfere with it ; and the defendant obtained a receiptor for it ; and it did not appear that any return of an attachment was made ; it was held, not to amount to a conversion by the officer.^ So, where an offi- cer attached a quantity of plate-glass, and did not remove it, but, under a statutory provision authorizing such course, deposited a copy of the writ and of his attachment in the town-clerk's office ; and thereafter another officer, in like manner, made a second attachment of the property, but did no act to disturb the possession of the officer who made the first levy; it was held, that the first officer could not maintain an action against the second for the conversion of the property.'^ 1 Rtickney v. Davis, 16 Pick. 19. ^ Morse v. Hunl, 17 New Hamp. 246. 2 Robinson v. Mansfield, 13 Pick. 139 ; « Rand v. Sargent, 23 Maine, 326. Johns V. Church, 12 Ibid. 557. '' Polley v. Lenox Iron Works, 15 Gray, 8 Paxton V. Steckcl, 2 Penn. State. 93. 513. See Bailey v. Adams, 14 Wendell, * Gibbs V. Chase, 10 Mass. 125 ; Miller 201. t\ Baker, 1 Metcalf, 27 ; St. George v. O'Connell, 110 Mass. 475. [180] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 199 § 199. The doctrines of the comnicn hiw in relation to confusion of goods have been partially brought into view and applied, in counection with the execution of attachments. What will con- stitute a confusion of goods, has been the subject of much dis- cussion. Intermixture is not necessarily a convertible term with confusion ; for there may be intermixture without confusion, though there can be no confusion without intermixture. Con- fusion takes place when there has been such an intermixture of similar articles owned by different persons, as that the property of each can no longer be distinguished.^ Confusion may be predicated of such things as money, corn, or hay, which have nothing in their appearance by which one quantity may be dis- tinguished from another. And so in the case of logs, of the same description of wood and similarly cut.^ But where the articles are readily distinguishable from each other, there is no confusion ; as in the case of cattle,^ or of crockery ware and china placed on the same shelf.* When an of&cer proceeds to execute an attachment, he is authorized to seize any personalty found in the defendant's pos- session, if he have no reason to suppose it to be the property of another. If it happen that the goods of a stranger are inter- mixed with those of the defendant, even without the owner's knowledge, the owner can maintain no action against the officer for taking them, until he have notified the officer, and demanded and identified his goods, and the officer shall have delayed or refused to deliver them.'^ In such case the officer cannot be 1 Hesseltine v. Stockwell, 80 Maine, kind and quality, then each may claim 237 ; Tufts v. McClintock, 28 Ibid. 424. his aliquot part ; but if the mixture is In Robinson v. Holt, 39 New Harap. 557, undistinguishable, because a new ingre- tlie court said: "The doctrine of the dient is formed, not capable of a just confusion of goods has been often dis- appreciation and division according to cussed, and may be considered as clearly the original rights of each, or if the arti- and distinctly settled. If the goods of cles mixed are of different values or several intermingled can be easily dis- quantities, and the original values or tinguished and separated, no change of quantities cannot be determined, the property takes place, and each party may party who occasions, or through whose lay claim to his own. If the goods are fault or neglect occurs the wrongful mix- of the same nature and vahie, although ture, must bear the whole loss." not capable of an actual separation by ^ Loomis v. Green, 7 Maine, 386 ; Hes- identifying each particular, if the portion seltine v. Stockwell, 30 Ibid. 237. of each owner is known, and a division ^ Holbrook v. Hyde, 1 Vermont, 286. can be made of equal proportionate value, * Treat v. Barber, 7 Conn. 274. as in the case of a mixture of corn, coffee, ^ Tufts v. McClintock, 28 Maine, 424 ; tea, wine, or other article of the same Wilson v. Lane, 33 New Hamp. 466. [181] § 199 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. treated as a trespasser for taking the goods ; but if he sell the whole, after notice of the owner's claim, it will be a conversion, for which trover may be maintained. ^ If a party wilfully intermingle his goods with those of another so that they cannot be distinguished, the other party is, by the principles of the common law, entitled to the entire property, without liability to account for any part of it.^ In that case, an officer cannot attach any of the goods for a debt of him who caused the intermixture ; ^ but may attach the whole for the debt of the innocent party ; and if the former would reclaim his property by law, the burden of proof is on himself to distinguish his goods from those of the defendant.^ If he know of the attachment, and fail to notify the officer of his claim, he cannot subject the officer to any accountability for the seizure.^ If an officer be notified, or have reason to believe, that goods of a stranger are intermingled with those of a defendant, it is his duty to make proper inquiry, with a view to avoid seizing property not the defendant's. He may require the claimant to point out his property, and if, being able to do so, he refuse, the officer may seize the whole, without liability to be proceeded • against for a tort.^ When, however, an officer having an attach- ment against A., undertakes to levy it on property in the hands of B., upon the assumption that B.'s title is fraudulent, and that the property is really A.'s ; and the goods he seeks to reach are 1 Lewis V. Whittemore, 5 New Hamp. though they have become indistinguish- 364 ; Albee v. Webster, 16 Ibid. 362 ; able, are of substantially the same qual- Shu'mway v. Rutter, 8 Pick. 443. ity and value. It is only in those cases 2 Ryder v. Hathaway, 2 Pick. 298 ; where the intermixture has been caused Willard v. Rice, 11 Metcalf, 493 ; 2 Kent's by the wilful or unlawful act of one of Com. 3G4; Story on Bailments, § 40; the proprietors, and the several parcels Beach v. Schmultz, 20 Illinois, 185 ; have thereby become so combined or Robinson v. Holt, 00 Ntw Hamp. 557 ; mingled together that they can no longer Tavlor v. Jones, 42 Ibid. 25. In Smith i: be identified, that his interest in them is Sanborn, 6 Gray, 134, the court said : " A lost." change of ownership does not necessarily 3 Beach v. Schmultz, 20 Ilhnois, 185. ensue from the mere intermixture of < Loomis v. Green, 7 Maine, 386; property belonging to different individu- Wilson v. Lane, 3:3 New Hamp. 4t)6; als. Their riglits as owners may remain Robinson i-. Holt, 39 Ibid. 557 ; Weil v. unaffected after it has taken place. Each Silverstone, 6 Bush, 698. one of them is still at liberty to reclaim ^ jjond v. Ward, 7 Mass. 123 ; Lewis what had before belonged to him, if it v. Wliittemore, 5 Now Hamp. 304 ; Wil- can be distinguished and separated from son v. Lane, 33 Ibid. 466. the rest ; or may insist on receiving his « Sawyer v. Merrill. 6 Pick. 478 ; Albee just proportion of the whole, when the v. Webster, 10 New Hamp. 302. several parcels of which it consists, [182] CHAP. VII.] EXECUTION AND EETUEN OF ATTACHMENT. § 200 intermingled with others of a similar kind, which, without dis- pute, belong to B. ; he cannot demand of B. to select what is undisputably his ; and a refusal by B. to make such selection will not justify an attachment of the whole ; unless B. made the intermixture fraudulently, and with the intention of frustrating the attachment.^ To justify an attachment of the goods of a stranger, on the ground of intermixture, it is incumbent on the officer to show that the goods were of such character, or, at least, that there was such an intermixture, that they could not, upon due inquiry, be distinguished from those of the defendant.''^ The necessity for inquiry in such cases is, with great propriety, very strongly insisted on b}' the courts, particularly in cases where the officer has a reasonable ground to induce a belief, that, in executing the writ, he may seize the property of a stranger, who is not present to assert his rights, and does not know of the seizure. Therefore, where an officer, under such circumstances, made no inquiry at all, and there was strong internal evidence, in the manner of his advertising the property for sale, that he must have been apprised that there was a defect in the defend- ant's title, it was held, that the owner might maintain trespass against him for taking the property.^ When a third party claims that his goods are intermingled, and have been attached, with those of the defendant, and ex- hibits to the officer a bill of sale of articles, and there are other articles of a like kind attached, so as that those of the claimant are undistinguishable, the officer will be justified in selecting and giving up the least valuable articles corresponding with the bill of sale.^ § 200. An officer having an attachment may enter the store of a third person where goods of the defendant are, for the purpose of executing the writ, and may even break open the door, if re- fused admittance on request, and may remain there long enough to seize, secure, and inventory the goods ; and if the owner of the store resist or oppose him, he may use whatever force is ^ Treat v. Barber, 7 Conn. 274. Smith v. Sanborn, 6 Gray, 134 ; Carlton 2 Walcott V. Keith, 2 Foster, 196 ; Wil- v. Davis, 8 Allen, 94 ; Morrill v. Keyes, son V. Lane, o3 New Hanip. 466 ; Morrill 14 Ibid. 222 ; Gilman v. Hill, 36 New y. Keyes, 14 Allen, 222. Hamp. 311. 3 Sibley v. Brown, 15 Maine, 185; * Shumway v. Rutter, 8 Pick. 443. [183] § 201 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VH. necessary to enable him to perform his duty ; ^ but in such case, he is not entitled, without the consent of the proprietor, to make use of the tenement to keep the attached property in;^ but must remove it therefrom as soon as it can reasonably be done, or he will be held a trespasser.^ And where the defendant is the proprietor of the store, and offers no resistance to the levy, the officer has no right to eject him from the store, or to retain posses- sion thereof longer than is necessary to make a proper attachment of the goods.* In every such case a demand for admittance must precede any resort to force. If the demand be made upon the person having the key of the building, it is all that is necessary ; and the officer is not bound to inquire how, or in what way, such person became possessed of the key.^ But if, in such case, the offi- cer take entire possession of the building, excluding the owner, he may, as respects the owner, be regarded as a trespasser ah initio.^ § 200 a. When, however, the matter of forcing an entrance into a dwelling-house, for the purpose of attaching property of the owner, is presented, the law takes different ground, and not only declares such forcing an unlawful act, but that the attachment made by means of it is unlawful and invalid." And this was held to apply to the case of a party living in a tenement house, which was let in distinct portions to several tenants, who used in com- mon the entry and stairway. It was decided that, in such case, an officer who has entered through the outer door into the entry, has no right to break open the door of one of the rooms of a tenant, in order to attach the property of a third person therein. ^ But in Vermont, if the property of a stranger be secreted in a dwelling-house, it is held, that the officer may proceed as in the case of a store.^ § 201. In Maine, it was attempted to establish the doctrine that an officer who levies an attachment on property of greater 1 Fullerton v. Mack, 2 Aikens, 415; * Perry i;. Carr, 42 Vermont, 50. Piatt V. Brown, 16 Pick. 553; Burton v. ^ Burton v. Wilkinson, 18 Vermont, Wilkinson, 18 Vermont, 186 ; Perry v. 186. Carr, 42 Ibid. 50; Messner v. Lewis, 20 <> Fullerton v. Mack, 2 Aikens, 415; Texas 221. Newton v. Adams, 4 Vermont, 437. 2 Rowley v. Rice, 11 Metcalf, 337. " Hsley v. Nichols, 12 Pick. 270; Peo- 8 Malcom v. Spoor, 12 Metcalf, 279; pie c. Hubbard, 24 Wendell, 309. Williams f. Powell. 101 Mass. 467 ; Davis « Swain r. Mizner, 8 Gray, 182. V Stone 120 Ibid. 228. ^ Burton v. Wilkinson, 18 Vermont, 186. '[181] CHAP. VII.] EXECUTION AND KETUBN OF ATTACffMENT. § 203 amount in value than the debt to be secured, transcends his au- thority, and becomes a trespasser ah initio^ and therefore that the attachment is invalid. But the court held, that it did not neces- sarily follow that the officer acted oppressively or illegally, be- cause he attached more property than was necessary to satisfy the attachment ; that if he acted oppressively, he might be liable to an action by the party injured ; but that third persons could not interpose and claim to set aside the attachment for that cause.^ If an officer make an excessive levy, that will not authorize a release of the property attached ; but it is his duty to retain sufficient to satisfy the claim, and discharge the rest.^ § 202. An officer should not do any act, at the time of making an attachment, which could be construed into an abandonment of the attachment, or the attachment will be a nullity. Thus, where an officer having an attachment, got into a wagon in which the defendant was riding, and told the defendant that he attached the horse harnessed to the wagon, and then rode down street with the defendant, without exercising any other act of posses- sion, and left the horse with the defendant, upon his promising to get a receiptor for it ; it was held, that, as the horse had not been under the officer's control for a moment, or, if it could be considered that he had had an instantaneous possession, it was as instantaneously abandoned, there was no attachment.^ § 203. A question here arises as to the right of an attaching officer to use the property attached, and the consequences to him of such use. In Vermont, if he use the property — as, for in- stance, a horse — sufficiently to pay for its keeping, he cannot require pay for such keeping;^ and the court there seemed to regard such use as perhaps admissible to that extent ; but as an unsafe and pernicious proceeding, not to be countenanced.^ Aside from this question, however, there can be no doubt that if the officer, or his bailee, use the property, so that its value is thereby impaired, he becomes by such use a trespasser ah initio.^ But the doctrine does not appear to have been extended to any 1 Merrill v. Curtis, 18 Maine, 272. ° Lamb v. Day, 8 Vermont, 407. 2 Wads worth v. Walliker, 51 Iowa, *> Lamb v. Day, 8 Vermont, 407 ; Briggs 605. V. Gleason, 29 Ibid. 78 ; Collins v. Perkins, 3 French v. Stanley, 21 Maine, 512. 31 Ibid. 624. * Dean v. Bailey, 12 Vermont, 142. [185] § 204 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. case, except where there was a clear, substantial violation of the owner's rights, and of such a character as to show a wanton dis- regard of duty on the part of the officer, or his bailee, either where the property was injured, or had been used by an officer for his own benefit, or for the benefit of some one other than the attachment debtor. Therefore, where an officer attached a horse, wagon and harness, and immediately put them to use in remov- ing other personal property of the debtor, attached by him at the same time, and it appeared that they were not thereby injured, it was held, that for such use he was not liable as a trespasser ah initio. And where it appeared that the officer was seen driv- ing the horse along the highway, the next day after the attach- ment, and there was no proof of the purpose of such driving, it was considered that it should not be presumed to have been for an unlawful purpose.^ § 204. The officer having duly levied the attachment, his next duty is to make return of it ; for though he may retain the prop- erty till the return day of the writ, without making his return, yet the making of a written return is necessary to perfect the attachment, and if it be not made on or before the return day, the attachment will be dissolved.^ If the return do not on its face show when it was made, the legal intendment, in the absence of proof to the contrar}'-, would be that it was made on or before that day.'^ The return can be made only by the officer to whom 1 Paul V. Slason, 22 Vermont, 231. real estate, under a mortgage executed 2 Wilder v. Ilolden, 24 Pick. 8 ; Russ after tlie levy of an attachment, sought V. Butterfield, 6 Cusiiing, 242; Williams to enjoin the sale of the property be- V. Babbitt, 14 Gray, 141 ; Paine v. Farr, cause the sheriff had not made a proper 118 Mass. 74 ; Tomlinson v. Stiles, 4 return on the writ, but had, as required Dutcher, 201 ; 5 Ibid. 426. In Alabama, by statute, filed in tiie Recorder's office however, in the case of an ancillary of the county a copy of the writ with attachment, — which is an attachment a description of the property attached; it taken out in a suit previously instituted was held, that the lien of tiie attachment by summons, — it was held, tliat tlie fail- was not devested by the failure of the ure of a sheriff, without tiie connivance officer to make a proper return ; that tlie or consent of tiie i)laintiff, to return such f.ict of a projier levy might be proved by an attaclnnent until after judgment, did other competent evidence; and that the not affect the jilaintiff's lien. Reed i-. filing of tlio copy of tlie writ, witii a de- Perkins, 14 Alabama, '2'?>\. And in South scri])tii)n of the projierty, in the Re- Carolina, a slicrifE who had neglected to corder's office, was sufficient to operate make his return in j)ropor time was al- as notice to third parties of the lien of lowed to make it afterward ;!»;ic ;)ro ^/«r. the attachment. Ritter v. Scannell, 11 Bancroft v. Sinclair, 12 Kichardson, G17. California, 238. And in California, where a mortgagee of '■^ Anderson v. Gratf, 41 Maryland, GOl. [186] CHAP. Vir.] EXECUTION AND RETUEN OF ATTACHMENT. § 205 the writ was directed. A return made by another officer is void.^ And though that maybe written upon the process, which, if signed by the officer, would be a return, yet if not signed, it is no return, and therefore there is no attachment.^ And as his return is in general conclusive against him, and cannot be disproved by parol evidence,^ it is important, not only to the parties interested, but to himself, that it should be made with great care. In Maine, the court used this language : " Officers ought to know what they attach, and to be holden to exactness and precision in making their returns. Neither the debtor nor the creditor would be safe if it were otherwise. And it is well that the law should be so promulgated and understood. An officer in such cases is intrusted with great power. He may seize another man's property, without the presence of witnesses, whether it be goods in a store, or else- where ; and safety only lies in holding him to a strict, minute, and particular account. To hold that he may, indifferently, make return of his doings at random, and afterwards be permitted to show that what he actually did was entirely different, would be opening a door to infinite laxity and fraud, and mischiefs in- calculable." The court, acting on these views, held, where the officer had returned an attachment of 175 yards of broadcloth, and was sued for not having the cloth forthcoming on execution, that he could not give evidence that he had attached all the broadcloths in the defendant's possession ; that the whole of the broadcloths so attached amounted to no more tlian thirty yards; and that by mistake he over-estimated the number of yards in the lot.4 § 205. The return should state specifically what the officer has done ; and, where the manner of doing it is important, it should be set forth, that the court may judge whether the requirements of the law have been complied with. It does not answer for the officer, in such case, to return that he attached ; he should return his doings and leave the court to determine whether they consti- 1 Olney v. Sheplierd,8 Blackford, 146. Hamp. 76; Clarke v. Gary, 11 Alabama, 2 Clymorev. Williams, 77 Illinois, 618; 98; Cliadbourne v. Sumner, 16 New Wilkins V. Tourtellott, 28 Kansas, 825. Hamp. 129 ; State v. Penner, 27 Minne- 3 Paxton V. Steckel, 2 Penn. State, 9.3 ; sota, 269. French v. Stanley, 21 Maine, 512 ; Haynes * Haynes v. Small, 22 Maine, 14. See V. Small, 22 Ibid. 14 ; Denny v. Willard, Clarke y. Gary, 11 Alabama, 98 11 Pick 519; Brown v. Davis, 9 New [187] § 207 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. tuted an attach ment.^ Neither should he return that he executed the writ as the hiw directs ; for that is but his opinion of his own acts.2 But where the officer returned that he had " levied" the writ on certain personal property, it was held, that the term could only mean a legal levy, which included a seizure of the property.-^ § 206. Though an officer's return is in general conclusive against him,* yet where it states a thing which, from the nature of the case, must be a matter of opinion only, he is not concluded by it, but may explain it by parol evidence. Thus, where the return affixes a value to the goods levied on, the officer will not be concluded by it;^ but it will be considered j^rimd facie a just and fair valuation, and the onus will rest on him to establish the contrary.^ So, where a sheriff returned that he had attached certain goods, at the hour of five o'clock ; it was held, that the return wdi^ prima facie indicative of the true time, and might, if no other standard could be found, be conclusive on him ; but that it was impossible for the sheriff to know, from his judgment or his watch, that five o'clock was the exact period of the levy, and his opinion on this point, unnecessarily returned, ought not to be considered as a conclusive averment of fact, but might be explained by parol testimony showing the moment when the levy took place.'^ § 207. It is proper that the return should state that the property levied on was the property of the defendant. What effect is due to the absence from the return of such a statement? This ques- tion has come up in various forms, both as to real and personal property. In Virginia, on appeal from a judgment rendered against a defendant without service on or appearance by him, the judgment was reversed because the return did not state that the property attached — which was personalty — was the defendant's.*^ 1 Gibson v. Wilson, 5 Arkansas, 422; Desha v. Baker, 3 Arkansas, 509; Cris- Desha v. Baker, 8 Ibid. 500; Jeffries v. man i'. Swisher, 4 Dutcher, 149. Ilarvie, 38 Mississippi, 97 ; Crizer v. Gor- « Baldwin v. Conger, 9 Sniedes & Mar- ren, 41 Ibid. 563; Ezelle v. Simpson, 42 shall, 516. Ibid. 515 ; Rankin v. Dnlany, 43 Ibid. •» An(e, § 204. 197 ; jMoore v. Coates, Ibid. 225. Sed ^ Denton v. Livingston, 9 Johnson, 90. conlra, Boyd v. King, 36 New Jersey Law, 6 pjerce v. Strickland, 2 Story, 292. J34 ' Williams v. Cheesborough, 4 Conn. '^ Stockton V. Downey, 6 Louisiana An- 356. nual, 581 ; Page v. Generes, Ibid. 549 ; » Clay v. Neilson, 5 Randolph, 596. [188] CHAP. VII.] EXECUTION AND RETURN OF ATTACmiENT. § 207 In Kentucky, in a similar case, the court considered the return bad, but did not reverse the judgment, because after it was ren- dered, the officer had, by leave of the court, amended his return, remedying the defect.^ In Texas, a purchaser of real estate from the owner thereof, without notice of a pending attachment levied thereon, sought relief in equity against the judgment in the attachment suit, as a cloud upon his title ; which brought up the question of the validity of the attachment proceedings. Two points were presented : the sufficiency of the description in the sheriffs return to identify the property ; and the effect of the absence from the return of any statement that the property levied on was the defendant's. Both were held to be "defects of so grave a character that no lien on the property was created by virtue of the attachment ; at least as against a purchaser from the defendant, without actual notice of the attachment proceedings." ^ In Kansas, a purchaser of a steamboat from the owner, pending an attachment against the latter, of which the purchaser had knowledge, and under which the boat had been seized, took the boat from the sheriff by a writ of replevin. The sheriff, in sup- port of his possessory right, offered in evidence the record of the judgment in the attachment suit and the order of repossession to him therein. By this record it appeared that the attachment proceeding was without service of process upon the defendant, who was a non-resident ; though he was notified by publication ; and that the sheriff's return did not state whose property the boat was. The court below ruled out the record as evidence ; and the Supreme Court sustained that ruling, upon the ground that, as it did not appear that any property of the attachment defendant had been attached, there was no authority in the court out of which the attachment issued to render any judgment what- ever in the attachment suit.^ Such are the cases on that side of the question. 1 Mason v. Anderson, 3 Monroe, 293. where the suit was brought by attach- In :Missouri, the court incidentally ex- ment, but held the rule inapplicable to pressed the same view. Anderson v. an ancillary attachment, in aid of a suit Scott, 2 IMissouri, 1-5. in which the defendant had been served 2 Meuley v. Zeigler, 2-3 Texas, 88. In with summons. Stoddart v. McMahan, 35 Texas, 267, the 3 Repine v. McPherson, 2 Kansas, 340. court adhered to its previous position [189] § 207 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. On the other hand, there are cases in New York, Alabama, Mississippi, and Iowa. In New York, on certiorari to bring up proceedings in attach- ment before a justice of the peace, Avhere judgment was rendered without service of process upon tlie defendant, it was objected that the constable's return did not show that the property levied on was the defendant's. The case was like those in Virginia and Kentucky, just referred to. The court held the return sufficient ; considering the fair and reasonable intendment to be, that the property taken belonged to the defendant.^ In Alabama, judgment was rendered against an absent defend- ant, without service of process upon or notice to him. On error, it was sought to reverse this judgment, upon the ground that the sheriff's return of the levy of the writ of attachment did not state that the property seized was the defendant's, — the same kind of case as those in Virginia, Kentucky, and New York. The point was overruled, the court thus expressing itself: "The sheriff is an officer placed under great responsibility by the law, which defines his duties. He pledges to the public, under the solemnity of an oath, his integrity and diligence ; and consequently every reasonable intendment must be made in favor of the regularity of his official acts. When he receives process requiring him to levy upon the property of a particular individual, and he returns it according to its mandate, with his indorsement stating that he has levied the same on property (particularly describing it), we must intend that the property seized belonged to the defendant ; because the process only authorized a levy upon his effects." ^ In a subsequent similar case, where real estate was attached, the court applied the same doctrine, holding the principle applicable to all cases alike.^ In Mississippi, on a motion to quash a sheriff's return of attach- ment of real estate, because it failed to state that the property was the defendant's, the court cited and followed the ruling in Alabama.^ In Iowa, in conflicts between titles to real estate derived from the same party, on the one side by his conveyance, and on the 1 Johnson v. Moss, 20 Wendell, 145. Tlmrnton v. Winter, 9 Ibid. G13 ; King 2 BickerstafE v. Patterson, 8 Porter, v. Bucks, 11 Ibid. 217. 24.5. See Kirksey v. Bates, 1 Alabama, ^ Lucas v. Godwin, G Alabama, 8.31. 303 ; Miller v. McMillan, 4 Ibid. 527 ; * Saunders v. Columbus Life Ins. Co., [190] 43 Mississippi, 583. CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 208 Other through ex parte attachment proceedings, the Supreme Court first held, that those proceedings imparted no title, where the sheriff's return did not state that the property levied on was the defendant's ; ^ but afterwards this position was abandoned, and the same ground taken, substantially, as in New York and Alabama.^ Such are the decisions on this side of the question. Different in facts, and not so directly in point, are cases in Maine and Wisconsin. In the former State, one claimed title through an attachment, which the officer had returned levied on property "supposed" to belong to the defendant ; and it was held, that the qualifying term "supposed " did not impair the effect of the attachment.'^ In the latter State, under a writ against S. and E., real estate was attached, and returned as the property of E., when, in fact, it was that of S. The attachment suit proceeded to judgment against both, and the property was sold under execution. In a suit between the purchaser at that sale, and a purchaser from S., it was held, that the title through the attachment proceedings was not vitiated by the return of the property as E.'s, when it was, in fact, that of S."^ § 208. By the general principles of law, independent of any statutory regulation, the officer is bound to give, as nearl}' as it can reasonably be done, in his return, or in a schedule or inven- tory annexed thereto, a specific description of the articles attached, their quantity, size, and number, and any other circumstances proper to ascertain their identity .^ If he give such description in his return, it is not necessary that he should accompany it with a separate schedule, though the statute require him to return the writ, " with his return indorsed thereon, and a schedule of the property attached." ^ It does not seem, however, that any more precision should be exhibited in the return than is necessary for the identification of the property. Hence, wdiere a sheriff returned an attachment of four horses (describing their color), as 1 Tiffany v. Glover, 3 G. Greene, 387. 5 pjerce v. Strickland, 2 Story, 292 ; " Rowan v. Lamb, 4 G. Greene, 408. Baxter v. Rice, 21 Pick. 197 ; Ilaynes v. 3 Bannister v. Higginson, 15 ^Nlaine, 73. Small, 22 Maine, 14 ; Toulmin v. Lesesne, •* Robertson v. Kinkead, 2G Wisconsin, 2 Alabama, 359. 500. 6 Pearce v. Baldridge, 7 Arkansas, 413. [191] § 209 EXECUTION AND EETUEN OF ATTACHMENT. [CHAP. VII. the property of the defendant, it was held sufficient.! So, where an officer returned that he had attached all the " stock of every kind " in a woollen factory particularly described, specifying the stock as a " lot of dye-wood and dye-stuff," — " lot of clean wool," — "sixteen pieces of black Oxford mixed cassimere," — "twenty-five pieces doeskins and tweeds," — "fifty-one pieces of unfinished cloth," — " lot of cotton-wool," — " lot of colored wool," — " cotton-wool, oils," &c., " in said woollen-factory," — the return was held sufficient.^ But a return of an attachment of " a stock of goods, wares, and merchandise," without any specification thereof, either in the return or in an annexed sched- ule, was held insufficient.^ So, where an officer returned an attachment of " all the wood, hay, bark, and lumber in the town of W. in which the defendant has any right, title, interest, or estate," it was held to be too indefinite to amount to an attach- ment of a quantity of hay in a barn, though, at the time, the offi- cer put up a paper on the barn, with the following notice upon it : "I have attached all the hay in tliis barn in which S. (the defendant) has any interest." * A failure to specify the articles attached will, however, subject the officer to nominal damages only, unless special damage be shown ; ^ and will not in any case authorize the attachment to be quashed.^ § 209. Unless required by statute, it is no part of an officer's duty to affix a valuation to the property he attaches.'' We have just seen that the statement of a valuation will, however, be primd facie evidence, as against him, of its own correctness.^ 1 Gary r. McCown, G Alabama, 870 ; not upon the premises occupierl by S., he Wharton v. Conger, 9 Smedes & Marshall, conld have no knowledge or information, 510. derived from an inspection of the records, 2 Ela V. Shepard, 32 New Hamp. 277. as to whether such lot of hay had been 8 Messner v. Lewis, 20 Texas, 221. attached or not ; and a dispute would in- 4 Bryant v. Osgood, 52 New Hamp. stantly arise between the purchaser, or 182. The court said: " The return gave subsequent attaching creditor, and the information that he had attached all the officer, as to the identity of the prop- hay in tlie town of W. in which S. had erty ; and infinite confusion would re- any interest ; but with regard to quan- suit, contrary to the demands of public tity, or any particular location, and policy." whether the hay was in one or more ^ Bruce v. Pettengill, 12 New Hamp. different lots or localities, there was no 341. specification in the return ; and if, after « Green v. Tyne, 1 Alabama, 235. the filing of this return, a purchaser, or '' Pierce v. Strickland, 2 Story, 292. a subsequent attaching creditor, should ^ Ante, § 20G. find a quantity of hay, cither upon or [192] CHAP. YII.] EXECUTION AND EETURX OF ATTACBTMENT. § 210 a The omission to affix a value, when he is not bound to state it, can hardly in any case prejudice the officer. In such an extreme case as arose in Maine, where there was an entire absence of all evidence of the value of the property, it would probably be held, as it was there, that the property was of the value commanded to be attached.! § 210. Where an officer is a party either claiming or justifying under his own official acts, his return must be received as evi- dence ; otherwise it would be impossible, in most cases, to prove an attachment of property on mesne process, or its seizure on execution. The officer might produce his precept and vshow his return upon it, but if this be not prima facie evidence, he could never prove the attachment, unless he took, or happened to have with him, a witness to prove the truth of his return. It may therefore be laid down as an unquestioned rule, that the returns of sworn officers, acting within the sphere of their official duty, are always competent evidence, and are to be presumed to be correct, until the contrary be shown.^ In New Hampshire, as between the officer and a trespasser, an officer's return of an at- tachment of personal property is equivalent to a return of all the facts and acts done, which are required to constitute a valid attachment, and is conclusive of the fact, and cannot be disproved by parol evidence.^ And so, in Maine, where in an action of replevin against him, he sets up the attachment as a defence.* § 210 a. An officer who justifies the taking of property under an attachment must show that the attachment was actually returned at the time when it was, by law, returnable. If the action against him be brought, and a trial therein had, before the writ under which he acted is returnable, the production of the writ, with his return thereon, will be sufficient, because he is the proper custodian of the writ until the return day. But if he fails to make his return in the time required by law, he cannot justify under it, whether the action be brought before or after the return 1 Childs V. Ham, 23 Maine, 74. ^ Brown v. Davis, 9 New Hamp. 76 ; 2 Bruce v. Holden, 21 Pick. 187 ; Sias IMorse v. Smith, 47 Ibid. 474; Lathrop v. V. Badger, 6 New Hamp. 393 ; Nichols v. Blake, 3 Foster, 46. Patten, 18 Maine, 231 ; Polley v. Lenox * Smith v. Smith, 24 Maine, 555. Iron Works, 4 Allen, 329 ; Chadbourne V. Sumner, 16 New Hamp. 129. 13 [193] § 212 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. day.i But where, by a settlement between tlie parties, it is agreed that the property shall be restored to a defendant, and the writ not returned, the officer, when sued for making the attachment, will not be precluded, by his failing to return the writ, from justifying under it.^ And when property attached is surrendered at tlie request of the defendant, and money is sub- stituted therefor as an equivalent, the substitution operates as an accord and satisfaction of any claim of the defendant against the officer for attaching the property, and enables the officer to justify under the writ, although it was not returned.^ § 210 h. Where an officer justifies under an attachment, a mis- description in his return of an article of personal property attached will not vitiate the attachment, if the appearance and use of the article are such tliat it may have been naturally and in good faith so misdescribed. And this is not a question of law to be decided by the court, but of fact to be tried by a jury.^ § 211. When an attachment has been returned, the return is beyond the reach of the officer and of the court into which it is made, unless a proper case be presented for the court to grant leave to amend it. The court will not order a return to be set aside, upon the application of a party to the cause, on his aver- ring its incorrectness ; ^ nor can a court, where one tract of land is attached, and so returned, require the officer, by rule, to substitute a different tract.*^ § 212. As a general proposition, every court may allow amend- ments of returns upon its process. All applications for the exercise of this power are addressed to the sound legal discretion of the court, to be determined by the nature and effect of the proposed amendment ; ^ and being so, a refusal to allow an amendment will not be error.^ And though amendments may be allowed, which, on consideration, may api)ear of doubtful 1 Russ V. Buttcrfield, Gushing, 242 ; « Steinmctz v. Nixon, 3 Yeatcs, 285. Williams V. Babbitt, 14 Gray, 141. '' Miller v. Shaoklotbr.l. 4 Dana, 2G4 ; 2 Paine v Farr 118 Mass. 74. Fr.wble v. Walkor, 4 Oliio, 64; Palmer v. 8 Taylor v. Knmvlton, 10 Allen, 137. Tl.aycr, 28 Conn. 237 ; Hill v. Cunning- * Hriggs 0. Mason, 31 Vermont, 433. liam, 23 Texas, 25. 5 Maris v. Schermerhorn, 3 WHiarton, « I'lanters' Bank i'. Walker, 3 Smedcs 13 & Marshall, 40'.). [194] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 215 expediency, yet if they are permitted in the legal exercise of a discretion, their propriety will not in general be questioned on exceptions. But if the amendment be one which the law does not authorize, it is otherwise.^ The exercise of this discretion is, in the absence of power conferred by statute, confined to the court out of which the process issued ; therefore a superior court has no right, on a trial before it, to permit a return made to an inferior court to be amended.^ § 218. An officer cannot, as a matter of right, amend a return he has once duly made. This would be to place at his discretion the verity and consistency of records, and the effect and authority of the most solemn judgments.^ But until the process is actually deposited in the clerk's office, the return does not become matter of record, even though the officer keep the process in his posses- sion long after the time when it should be returned ; and until the return is actually made, the process is under his control and in his power, and he does not need the authority of the court to amend it.* § 214. If the amendment is sought in a mere matter of form, such as affixing the signature of the officer to a return already written out, but which by oversight was not signed, there can be no good reason why it should not be allowed.-^ And where the mistake is a mere slip of the pen, manifest on the face of the record, and concerning which no party who examined the record could doubt, the officer will be allowed to amend, even after final judgment in the cause.*^ § 215. When an amendment is allowed, it relates, as between the parties to the suit, to the time when the original return was made;' and the amendment and the original will, if necessary 1 Fairfield v. Paine, 23 Maine, 498. ^ Dewar v. Spence, 2 Wharton, 211 ; - Smith V. Low, 2 Iredell, 457; Harper Childs v. Barrows, 9 Metcalf, 41o ; Wil- V. Miller, 4 Ibid. 34; Brainard v. Burton, kins v. Tourtellott, 28 Kansas, 825. In £ Vermont, 97. Tennessee it was held, that the indorse- 3 Miller v. Shackleford, 4 Dana, 264 ; ment of the sheriff's return on the writ Palmer v. Thayer, 28 Conn. 2o7 : Hill r. without his signature was a good levy. Cunningham, 25 Texas, 25. In Morris v. Lea v. Maxwell, 1 Head, 365. Trustees, 15 Illinois, 206, it was held that ^ Johnson v. Day, 17 Pick. 106. amendments by sheriffs of their returns ^ Smith c. Leavitts, 10 Alabama, 92 ; are of course. Kitchen v. Reinsky, 42 Mississippi, 427 ; * Welsh V. Joy, 13 Pick. 477. Hill v. Cunningham, 25 Texas, 25. [195] § 216 EXECUTION AKD RETURN OF ATTACHMENT. [CHAP. VTI. to a proper understanding of the doings of the officer, be consid- ered as one return.^ § 216. There are numerous decisions bearing on the subject of amendments of returns on final process, which may have more or less analogy to the subject now before us ; but it is deemed advisable to consider here only those which refer to mesne pro- cess. In Mississippi, it is held to be error to permit a sheriff to amend his return, after judgment,^ or after the return term of the writ, without notice to the adverse party i"^ or after his term of office has expired* In Virginia, it has been decided that the court ought to permit a sheriff to amend his return upon a writ of ad quod damnum^ at any time before judgment on it ; ^ and in Kentucky, a like amendment was allowed several j-ears after the writ was executed, there being the inquest to amend bj^.^ In Kentucky, a sheriff may amend his return of an attachment, so as to show that the effects attached were the property of the defendant, as well before as after judgment, and at a subsequent term ; " and may amend his return on a petition and summons, after a writ of error is sued out to reverse the judgment.^ In Massachusetts, an amendment, in one case, was allowed after verdict ; ^ and in another case, where the return stated an attach- ment of property, and a garnishment, but omitted to state any service upon the defendants, the Supreme Court after a writ of error was sued out to reverse the judgment, continued the case until an application could be made to the inferior court for leave for the officer to amend his return ; intimating that the inferior court had the power to grant the leave. ^"^ But after the case had gone back to the inferior court, which refused to allow the amendment, the Supreme Court declined to interfere, because the matter was peculiarly within the discretion of the inferior court.^^ In Maryland, where a sheriff erroneously made a return 1 Layman v. Beam, 6 Wharton, 181. « Gay v. Caldwell, Hardin, 03. 2 Huplies V. Lapice, 5 Smedes & Mar- "^ Mason v. Anderson, 3 Monroe, 293; shall, 451. Malone v. Samuel, 3 A. K. Marshall, 350. 8 Dorsey v. Pierce, 5 Howard (Mi.l, 8 Irvine r. Scobee, 5 Littell, 70. 173 ; Williams v. Oppelt, 1 Smedes & ^ Johnson v. Day, 17 Pick. 106. Marshall, 559. ^'^ Tiiatcher v. Miller, 11 Mass. 413. « Coleu. Dupper, 41 Mississippi, 557. " Thatcher v. Miller, 13 Mass. 270. 5 Bullitt V. Winston, 1 Munford, 269 ; Dnwson r. Moons, 4 Ibid. 535; Baird v. Rice, 1 Call. 18. [196] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 217 of cevi corpus, upon a writ of attachment, he was allowed, six years afterwards, to amend the return.^ lu Alabama, a return may be amended after demurrer.^ Where an officer made a minute on the writ of the time and mode of service, he was per- mitted, in Massachusetts, after he went out of office, and after the case had gone into the appellate court, to complete his return from his minutes on the writ.^ But in Connecticut, where a sheriff attached goods, which were subject to a previous attach- ment, and the court out of which the process issued allowed him, after he went out of office, to amend his return, by adding to it that he attached the property subject to a prior attachment, it was held by the Supreme Court that the amendment could not be made ; not only because no notice to the parties was given of the motion to amend, but because the returning officer was no longer in office.^ § 217. In all cases where application is made for leave to amend a return, there should be somethiiig to amend by ; though this may not be required by every court to which such applications are addressed. In the case previously referred to in Massachu- setts, where the cause was continued by the Supreme Court to give time for an application to the inferior court for leave to amend the return, one of the reasons assigned for not interfering with the refusal of the inferior court to allow the amendment, was, that there was nothing to amend by but the affidavit of the officer. The court said : " At the same term in which a precept is returnable, to correct a mistake or omission, may be highly proper ; but for an officer to undertake, six years after a defec- tive return, to know with certainty the performance of a partic- ular duty, when he is daily and hourly performing similar duties upon different persons, is more than can be expected of men, however strong their memory. In the cases cited, where amend- ments have been permitted, there was something on the record, by which the correction could be made ; and in such cases there can be no difficulty." ^ 1 Hutchins v. Brown, 4 Harris & Mc- * Wilkie v. Hall, 15 Conn. 32. Henry, 498. "^ Tliatcher v. Miller, 13 Mass. 270; 2 Moreland v. Ruffin, Minor, 18. Emerson v. Upton, 9 Pick. 167. 3 Adams v. Robinson, 1 Pick. 461. [197] § 220 EXECUTION AND EETUEN OF ATTACHMENT. [CHAP. VII. § 218. Where an officer, immediately upon receiving a writ, with directions to attach certain real estate of the debtor, made a memorandum upon the wait that he attached accordingly, stat- ing the day and month, but afterwards, by mistake, returned that he attached on the same day of the succeeding month, he was allowed to correct the error, there being something to amend by.i But an amendment was refused, in the date of a return, after a lapse of several years, where the officer made no minute of his doings at the time of the service.^ § 219. In general, no amendment of an officer's return will be permitted, or allowed to have effect, when it would destroy or lessen the rights of third persons, previously acquired, bond fide, and without notice by the record, or otherwise. Therefore, where an officer returned on a writ of attachment, that he had attached land of the defendant, on the 6th of Jujie ; and after- wards, by leave of court, he was permitted to amend his return, by substituting March for June ; it was held, that the amendment was not operative as against a mortgage of the land, recorded in May, though the evidence was sufficient to satisfy the court that the attachment was levied in March, and that the return, as first made, was a mistake.^ § 220. But if the party who has acquired rights which would be injuriously affected by the amendment, had notice, actual or constructive, that the officer had done his duty, and that there was an omission, by mistake, in his return, which, if supplied, would perfect the officer's proceedings, or if that fact is clearly manifest on the record, he cannot avail himself of the rule above laid down. Thus, A. sued out an attachment against B. on the 19th of November ; on the next day, C. likewise obtained an attachment against B. The same attorney acted for both plain- tiffs, having a full knowledge of all the facts, and directing the 1 Haven v. Snow, 14 Pick. 28; Gay v. 146; Berry i'. Spear, 13 Ibitl. 187; Ban- Caldwell, Hardin, 03; Palmer v. Tliayer, nister v. Hipginson, 15 Ibitl. 73; Gilman 28 Conn. 237. v. Stetson, 16 Ibid. 124 ; Eveleth v. Little, ■^ Ilovey V. Wait, 17 Pick. 196 : Fair- Ibid. 374 ; Fairfield v. Paine, 23 Ibid, field I". Paine, 23 Maine, 498. 498 ; Bowman v. Stark, 6 New Ilamp. ■' Emerson v. Upton, I'ick. 167. See 459 ; Davidson ?-. Cowan, 1 Devcreux, Putnam r. Hall. 3 Ibid. 445 ; Hovey i-. 304 ; Ohio Life Ins. & Tr. Co. v. Urbana Wait, 17 Ibid. lOG ; Williams v. Brackett, Ins. Co., 13 Ohio, 220. 8 Mass. 240 ; Means v. Osgood, 7 Maine, ■ [198] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 220 « order of the attachments. The sheriff, in returning A.'s attach- ment, dated the levy, by mistake, on the 19th of December, while he returned C.'s attachment as having been levied on the 20th of November ; thus giving the second attachment priority. At the return term of the writs, the sheriff obtained leave to amend his return on A.'s writ by inserting November instead of December ; and this amendment was held effective against C, because he had, tln-ough his attorney, constructive notice that A.'s attach- ment was anterior to his.^ So, where a writ of attachinent was issued and levied on land, on the 4th of November, 1833, and was actually returned at the term next ensuing its date, and judgment was rendered at the June Term, 1831, though the sheriff returned that he had executed it on the 4th of November, 1834 ; it was held, that the sheriff might amend his return according to the fact, and that the amendment should be effective against a grantee of the defendant under a deed dated November 26, 1833, because the record clearly showed the mistake, and no one could by possibility be misled or injured by it.^ 1 Haven r. Snow, 14 Pick. 28. v. Barrows, 9 Mctcalf, 413 ; Fairfield v. 2 Johnson v. Day, 17 Pick. 106 ; Childa Paine, 23 Maine, 498. [199] § 221 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. CHAPTER VIII. EFFECT AND OFFICE OF AN ATTACHMENT. § 221. The mere issue of an attachment has no force as against the defendant's property, either with reference to his rights, or to those of third persons, therein ; ^ nor has its lodgment in the hands of an officer ; ^ but its effect is to be dated from the time of its actual service.^ And when questions arise as to the title of property claimed through an attachment, and the judgment and execution following it, the rights so acquired look back for their inception, not to the judgment, but to the attachment.* Therefore, where land was attached on different days, under two writs in favor of different parties, and was sold under the execu- tion of the junior attacher, such sale had no effect to discharge the lien of the senior attachment.^ 1 Hears i'. "Winslow, 1 Smedes & Mar- shall, Cli'y, 449 ; Williamson v. Bowie, 6 Munford, 176 ; Wallace v. Forest, 2 Har- ris & McHenry, 261 ; Tonilinson v. Stiles, 4 Dutcher, 201. 2 Crowninshield v. Strobel, 2 Brevard, 80 ; Robertson v. Forrest, Ibid. 466 ; Bethune v. Gibson, Ibid. 501 ; Crocker V. Radclifle, 3 Ibid. 23 ; Lynch v. Crary, 52 New York, 181. 8 Gates V. Bushnell, 9 Conn. 5-30 ; Sewell V. Savage, 1 B. Monroe, 260; Nutter V. Connett, 3 Ibid. 109 ; Fitcli v. Waite, 5 Conn. 117 ; Learned v. Vanden- burgh, 8 Howard Pract. 77 ; Pond v. Griffin, 1 Alabama, 078 ; Crowninsliield V. Strobel, 2 Brevard, 80: Robertson v. Forrest, Ibid. 46G ; Betliune v. Gibson, Ibid. 601 ; Crocker v. Radcliffe, 3 Ibid. 23 ; Zeigenhagen v. Doe, 1 Indiana, 296 ; Burkhardt v. McClellan, 15 Abbott Pract. 243, note ; Taffts v. Manlove, 14 California, 47; Haldeman r. Iliilsborougli & Cin. R. R. Co., 2 Handy, 101 ; Kuhn v. Graves, 9 Iowa, 303 ; Stockley v. AVadman, 1 Houston, 350 ; Rodgers v. Bonner, 45 [200] New York, 379; Lynch v. Crary, 52 Ibid. 181; Ensworth v. King, 50 Mis- souri, 477 ; Hunt v. Strew, 39 Michigan, 368 ; McCobb v. Tyler, 2 Cranch C. C, 199; Grigsley v. Love, Ibid. 413. * Tyrell v. Rountree, 7 Peters, 464; 1 McLean, 95 ; Stephen v. Thayer, 2 Bay, 272 ; Am. Ex. Bank v. Morris Canal & Banking Co., 6 Hill (N. Y.), 362 ; Martin V. Dryden, 6 Illinois (1 Gilnian), 187; Redus V. Wofford, 4 Smedes & Marshall, 579; Stanley v. Perley, .5 Maine, 869; Emerson v. Littlcfield, 12 Ibid. 148; Brown v. Williams, 31 Ibid. 403; Tap- pan V. Harri.son, 2 Humphreys, 172; Oldham v. Scrivener, 3 B. Monroe, 579; Lackey v. Soibert. 23 Missouri, 85; Ens- worth V. King, 50 Ibid. 477 ; Ilall v. Ste- phens, 05 Ibid. 670 ; Hannahs i\ Felt, 15 Iowa, 141 ; Cockey v. Milne's Lessee, 16 Maryland, 200; Wilson v. Forsyth, 24 Barbour. 105 ; Baglcy v. Ward, 37 Cali- fornia, 121; Porter 1-. Pico, 55 Ibid. 105; Wright V. Smith, 11 Nebraska, 341 , Lou- bat V. Kipp, 9 Florida, 00. * Ilanauer v. Casey, 26 Arkansas, 352. CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT § 223 § 222. The levy of an attachment is no satisfaction of the plaintiff's demand, as that of an execution is, under some circum- stances ; 1 nor does it change the estate of the defendant in the property attached ;2 though, to the extent of its lien, his absolute property is diminished.^ Nor does it take away his power of transfer, either absolutely or in mortgage, subject to the lien of the attachment.* Nor does the attaching plaintiff acquire any property thereby.^ Nor can he sell the property by virtue of the attachment, before judgment and execution ; but can do so only under an order of court, or of the judge who issued the writ.*^ Nor has the court authority to order the attached property to be delivered to the plaintiff.^ Therefore, where an attaching creditor,' after obtaining judgment in the action, demanded the attached goods of the officer, who refused to deliver them, and the creditor thereupon sued him ; it was decided, that it was not the duty of the officer, but would have been contrary to his duty, to make such a delivery ; that the goods were in the legal custody of the officer, who was accountable for them ; and that the gen- eral property in them was not changed until a levy and sale by execution.^ § 223. It is a well-settled principle, that an attaching creditor can acquire through his attachment no higher or better rights to 1 McBride v. Farmers' Bank, 28 Bar- Denny v. Willard, 11 Ibid. 519; Fetty- bour, 476; Maxwell v. Stewart, "22 Wal- place v. Dutch, 13 Ibid. 388; Arnold v. lace, 77 ; Cravens v. Wilson, 48 Texas, Brown, 24 Ibid. 89 ; Warner v. Everett, 324. Sed contra, Yourt v. Hopkins, 24 7 B. Monroe, 262 ; Wlieeler v. Nichols, Illinois, 326. 32 Maine, 233 ; Calkins v. Lockwood, 17 2 Bigelow V. Willson, 1 Tick. 485; Conn. i54; Merrick v. Hutt, 15 Arkan- Blake v. Shaw, 7 Mass. 505 ; Starr v. sas, 331 ; Klinck v. Kelly, 03 Barbour, Moore, 3 McLean, .354 ; Tiernan v. Mur- 622 ; Ware v. Russell, 70 Alabama, 174 ; rah, 1 Robinson (La.), 443; Crocker v. Smith y. Clinton Bridge Co., 13 Bradwell, Pierce, 31 Maine, 177 , Wheeler v. 572. Nichols, 32 Ibid. 233; Perkins v. Nor- ° Bigelow v. Willson, 1 Pick. 485; veil, 6 Humphreys, 151; Snell v. Allen, Crocker v. Radcliffe, 3 Brevard, 23; 1 Swan, 208 ; Oldham v. Scrivener, 3 B. Willing v. Bleeker, 2 Sergeant & Rawle, Monroe, 579; Haldeman v. Hillsborough 221; Owings r. Norwood, 2 Harris & & Cin. R. R. Co., 2 Handy, 101 ; Merrick Johnson, 96; Goddard v. Perkins, 9 New V. Hutt^ 15 Arkansas, 331 ; Atkins v. Hamp. 488 ; Austin v. Wade, Pennington, Swope, 38 Ibid. 528; Larimer v. Kelly, 2d Ed. 727; Foulks v. Pegg, Nevada, 10 Kansas, 298; Scarborough v. Malone, 136; Atkins v. Swope, 38 Arkansas, 528. 67 Alabama, 570. *> McKay v. Harrower, 27 Barbour, 3 Grosvenor v. Gold, 9 Mass. 209; 463; Culver w. Rumsey, 6 Bradwell, -598. Smith V. Clinton Bridge Co., 13 Brad- ^ Welch v. Jamison, 1 Howard (Mi.), well, 572. 160. * Bigelow V. Willson, 1 Pick. 485 ; » Blake v. Shaw, 7 ilass. 505. [201] § 224 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. the property or assets attached, than the defendant had when the attachment took ^^Zacg, unless he can show some fraud or collusion by which his rights are impaired.^ No interest subsequently ac- quired by the defendant in the attached property will be affected by the attachment.^ If the property, when attached, is subject to a lien hand fide placed upon it by the defendant, that lien must be respected, and the attachment postponed to it.^ And tliis rule was once held to extend to at least one description of what have been termed silent liens, that is, liens existing merely by operation of law. Under this view it was held by the Circuit Court of tlie United States for Pennsylvania, that the sale of a ship under attachment had no effect to devest a lien in admiralty for mariners' wages.^ But subsequently, Ijy the Supreme Court of Pennsylvania, and by tliat of the United States, it was de- cided that an attachment issued by a State court and levied upon a vessel, was not defeated by a subsequent proceeding in rem in admiralty for such wages.^ § 224. When an attachment is served, a lien on the property attached is created, which nothing subsequent can destroy but the dissolution of the attachment.^ It is said to be beyond the power of a State legislature to pass an act annulling it.'' And * 1 Post,%'l\b. 17 Conn. 278; WoolMk v. Ingram, 53 2 Crocker v. Pierce, 31 Maine, 177; Alabama, 11 ; McClellan r. Lipscomb, 56 Handly v. Pfister, 39 California, 283. Ibid. 255; Grigg v. Banks, 59 Ibid. 311; 3 Nathan 1-. Giles, 5 Taunton, 558, 57G ; Schacklett & Clyde's Appeal, 14 Penn. Baillio V. Poisset, 8 Martin, N. s. 337 ; State, 32G ; Erskine v. Staley, J2 Leigh, Frazierv. Willcox, 4 Robinson (La.), 517; 40G; Moore v. Holt, 10 Grattan, 284; Peck V. Webber, 7 Howard (Mi.),G58; Gary v. Gregg, 8 Stewart, 433; Murray Parker v. Farr, 2 Browne, 331 ; Reeves v. Gibson, 2 Louisiana Annual, 311 ; Her- V. Johnson, 7 Halsted, 29; Meeker v. vey v. Champion, 11 Humphreys, 5G9 ; Wilson, 1 Gallison, 419; Haldeman v. SnoU v. Allen, 1 Swan, 208; Zeigenha- Ilillsborough & Cin. R. R. Co., 2 Handy, gen i-. Doe, 1 Indiana, 29G ; Pierson v. 101. Robb, 4 Illinois (3 Scammon), 139; Mar- 4 Taylor r. Royal Sa.xon, 1 Wallace, tin v. Dryden, 6 Illinois (1 Gilman), 187 ; Jr., 311. Lyon v. Sanford, 5 Coim. 544; Lackey v. & Taylor v. Carryl, 24 Penn. State, 259 ; Seibert, 23 Missouri, 85 ; Hannahs v. Felt, 8. c. 20 Howard Sup. Ct. 583. 15 Iowa, 141 ; Chandler v. Dyer, 37 Ver- Goore »•. McDaniel, 1 McCord, 480 ; niont, 345 ; Ward v. McKenzio, 33 Texas, Peck V. Webber, 7 Howard (Mi.), G58; 297. Smith V. Bradstrcet. IG Pick. 264; Peo- " Hannahs v. Felt, l5 Iowa, 141. But pie V. Cameron, 7 Illinois (2 Gilman), if the legislature repeal the law author- 468 ; Vinson v. Huddleston, Cooke, 254 ; izing proceedings by attachment, it was Van Loan v. Kline, 10 Johnson, 129; licld in Indiana, there can be no further Desha I'. Baker, 3 Arkansas, 509; Frell- movement in pending suits of that kind, son !'. Green, 19 Ibid. 37G ; Harrison v. See posl, § 412. Trader, 29 Ibid. 85; Davenport v. Lacon, [202j CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. § 225 as to the defendant, though, as we have just seen, his power of alienation, subject to the attachment, is not impaired, yet no subsequent act of that description on his part can defeat the attachment.^ § 224 a. The power to levy by virtue of an attachment does not survive the recovery of judgment in the action, and no new right or interest in the property of the defendant can be there- after acquired under it.'^ And when, in a suit b}' attachment, the plaintiff obtains a judgment which, by the existing law, is a lien upon the property attached, the lien of the attachment , becomes merged in that of the judgment, and the only effect thereafter of the attachment lien upon the property is to pre- serve the priority thereby acquired, and this priority is maintained and enforced under the judgment. If the plaintiff neglect, within the lawful period of his judgment lien, to subject the property to execution, the lien of the attachment does not revive on the expiration of the judgment lien.^ § 225. Tn connection with the lien acquired by an attaching creditor has come up, in different forms, the question of his right to secure the benefit of his lien, as against fraudulent conveyances of, and incumbrances upon, the attached propert}'. The first shape this question assumed was, as to the attaching creditor's right to maintain a creditor's bill in equity to set aside such a conveyance or incumbrance. The general rule that a creditor at large, before he obtains judgment, is not entitled to such a remedy, is familiar to the legal mind. That, like all general rules, it is subject to exceptions, was held by the Court of Appeals of Ken- tucky, in sustaining such a bill by a creditor at large, where the debtor resided or had removed out of the State, so as to prevent a judgment being obtained against him at law.* And so in Mis- souri, where the debtor had absconded, and under the particular circumstances of that case, the law afforded no remedy by attach- 1 McBride v. Floyd, 2 Bailey, 209 ; Georgia, 114 ; Stevenson v. Prather, 24 Harvey v. Grymes, 8 Martin, 395 ; Bach Louisiana Annual, 484. V. Goodrich, 9 Robinson (La.), 391; ^ j^ynch i'. Crary, 52 New York, 181. Franklin Fire Ins. Co. v. West, 8 Watts ^ Bagley v. Ward, 37 California, 121 ; & Sergeant, 350; Randolph v. Carlton, 8 Speelman v. Chaffee, 5 Colorado, 247. Alabama, 600 ; Conway v. Butclier, 8 * Scott v. McMillen, 1 Littell, 302, Philadelphia, 272; Ozmore v. Hood, 53 [203] § 225 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. ment.^ In several States -the attempt has been made to establish an exception in favor of attaching creditors. In New York, be- fore the adoption of the Code of Procedure, and when an attach- ment operated in favor of all the creditors of the defendant who should present their claims, a bill in favor of an attaching creditor was sustained by the Court of Chancery ; " but in other cases, since the adoption of the Code, as will presently appear, the contrary has been held. In Illinois the question arose where no property was seized, but onl}' a garnishee summoned ; and the court held, that the garnishment was not a lien on the effects in the gar- nishee's hands, and therefore would not sustain the bill. The de- cision, however, did not rest on that position alone, but the court applied the general rule, as above stated ; which would have been equally adverse to the proceeding if property had been levied on.^ In Missouri, the rule was applied, where attachments were levied on goods previously taken under executions issued on judgments confessed by the defendants, which were alleged to be fraudu- lent^ * In Nebraska, it was enforced, where an attachment was levied on real estate, and the attachment plaintiff sought to set aside a conve3'ance of the land, alleged to be fraudulent.^ And so in Kansas, where personal property was attached.^ On the other hand, it has been held in New Hampshire," New Jersey,^ Texas,^ and California,^^ that an attachment confers a lien, in virtue of which the bill may be maintained ; but, in the last-named State, that the lien of the attachment could not be rendered effectual for the purpose of impeaching a conveyance alleged to be fraudu- lent, until judgment should have been obtained in the attachment suit.^^ Such is the state of the decisions in regard to the specific recourse through a creditor's bill. But the matter has, substantially, come up in another shape, with other results. Attachments are often levied upon goods 1 Pendleton v. Perkins, 49 Missouri, ^ Hunt v. Fiekl, 1 Stockton, 36, over- 5G5. ruling Molville v. Brown, 1 Harrison, 8G3. 2 Falconer v. Freeman, 4 Sandford, See Williams v. Miclienor, 3 Stockton, Ch'y, 5G5. 520 ; Kobert v. Hodges, 16 New Jersey, 8 Bigelow V. Andress, 31 Illinois, 322. Eq., 290; Curry v. Glass, 25 Ibid. 108 j * Martin v. Michael, 23 iVIissouri, 50. Smith v. Muirheid, 34 Ibid. 4. 6 Weil V. Lankins, 3 Nebraska, 884. 9 Ward i'. McKcnzie, 33 Texas, 297. 6 Tennent i;. Battey, 18 Kansas, 324. J<* Ileyneman v. Dannenberg, G Califor- ' Stone V. Anderson, G Foster, 500; nia, 37G ; Scales r. Scott, 13 Ibid. TG. See Dodge V. Griswold, 8 New Ilamp. 425; Castle r. Bader, 23 Ibid. 75. Tappan ?'. Evans, 11 Ibid. 311; Sheafe f. " McMinn v. Whelan, 27 California, Sheafe, 40 Ibid. 510. 300. [204J CHAP. VIII.] EFFECT AND OFFICE OF AX ATTACHMENT. § 223 found in the possession of a third party, claiming title to them under a sale or assignment from the defendant, which the attach- ing creditor, or the officer, or both believe to be fraudulent and void as against creditors. If, in such a case, the creditor may not, in virtue of his attachment, maintain a bill to set aside the sale or assignment, must the attachment therefore be fruitless ? This question has been directly presented in connection with actions by the vendee or assignee against the officer or the attaching creditor, either for trespass, or for the goods, or for the value thereof. Against the right of the officer or creditor when so sued, to set up the fraudulent character of the sale or assign- ment as a defence, the same ground is taken as against the right of a creditor to maintain a creditor's bill, namely, that the credi- tor is only a creditor at large until he has obtained a judgment. On the other hand, it is urged that the statute relative to fraudu- lent conveyances is not by its terras confined to judgment credi- tors ; that such conveyances are void as to all creditors who elect to treat them as void by adopting the process which the law provides; that attachment, as a provisional remedy, is one of these, the command of which is the same, in substance, as that of an execution ; and that a levy under it is a lien, which author- izes the party claiming through it to assail, as fraudulent, trans- fers of the property levied on. On the question, as thus presented, it was, by the Supreme Court of Xew York, once held that an attaching creditor, with no judgment or execution, had no standing in court which would enable him, when sued for the value of attached goods by an alleged vendee thereof, to impeach and litigate the bona fides of a sale of the goods, which had been consummated by transfer and delivery before the attachment was levied.^ And this ruling was followed in a case where an attachment was levied on goods pre- viously seized under execution issued upon a judgment confessed by the defendant, which the attaching plaintiff alleged to be fraudulent.^ But the ruling in the first case was expressly, and in the second case substantially, overruled by the Court of Ap- peals of that State.^ And in a subsequent case, where a sheriff was sued by one claiming attached property under an assignment 1 Hall V. Stryker, 29 Barbour, 105; 82; Brooks v. Stone, 19 Howard Pract. 9 Abbott Pract. 342. 395. - Bentlej r. Goodwin, 15 Abbott Pract. 3 Hall v. Stryker, 27 New York, 596. [205] § 225 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. from the defendant, which the sheriff alleged to be fraudulent, as against the defendant's creditors, that court held, that an attach- ment in the hands of an officer authorized him to seize any prop- erty which the defendant had disposed of in any manner with intent to defraud his creditors ; that the attaching creditor was not, after service of his attachment, to be deemed a mere creditor at large, but a creditor having a specific lien upon the goods attached : and that the sheriff, as his bailee, had a like lien, and had the right to show that the assignee's title was fraudulent as against attaching creditors ; ^ and that an attaching creditor might maintain an action to have a prior assignment executed by the debtor and an execution issued upon judgment confessed by him declared fraudulent and void, and to have the priority of the lien acquired by him under the attachment established.^ And this right does not depend on the recover}^ of judgment in the attachment suit, but exists anterior to such recover}-.'^ The posi- tion taken by the New York Court of Appeals is substantially held in New Hampshire,* Connecticut,^ and Michigan.'^ In view of these New York decisions, it would seem that the position taken by Clerke, J., of the Supreme Court of that State, was justifiable, when he said: ''Since the decision in Rinchey v. Stryker, I consider it no longer an open question, whether, when an attachment is issued under the Code of Pro- cedure, the plaintiff in the action obtains such a lien on the property attached as will entitle him to the intervention of the equitable jurisdiction of the court to remove or set aside all fraudulent claims and transfers, or any other fraudulent obstacles in the way of the realization of the lien, in case the plaintiff should recover a judgment." ^ But such was not the view of the Court of Appeals, by which it is still held, that an attaching 1 Eincliev t". Stryker, 28 New York, ^ Kinrliey r. -Stryker, 28 New York, 45; 2() Howard Tract. 75. See Frost v. 45; 20 Howard Pract. 75; TUurber v. Mott, 34 New York, 253 ; Jacobs v. Rem- Blanck, 50 New York, 80 ; Kelly v. Lane, sen, 12 Abbott Pract. 390; Schlussell v. 28 Howard Pract. P28 ; 42 Barbour, 504 ; Wiilet, Ibid. 307 ; Thayer i-. Willet, 5 18 Abbott Pract. 229. Bosworth, 344; 9 Abbott Pract. 325; < Angier r. Ash, 6 Foster, 99. Kelly V. Lane, 28 Howard Pract. 128; ^ Owen v. Dixon, 17 Conn. 402; Peck 42 Barbour, 594 ; 18 Al)bott Pract. 229; v. W]iiting,21 Ibid. 200; Potter v. Mather, Mechanics' & Traders' Bank v. Dakin, 24 Ibid. 551. 33 Howard Pract. 31G ; Carr v. Van lioe- '^ Dixon v. Hill, 5 Michiijan, 404. sen, 33 New York Supreme Ct. 31G. '' Greenleaf r. Muniford, -JO Howard 2 Bates V. Plonsky, 35 New York Su- Pract. :'.0 ; 19 Abbott Pract. 4G9; 42 Bar- preme Ct. 112. bour, 594. [206] CHAP. VIII.] EFFECT A^JD OFFICE OF AN ATTACHilENT. § 227 plaintiff cannot, on the ground of his attachment, maintain a creditor's bill.^ In connection with the justification by an officer or creditor of an attachment of goods in the hands of a third person, whose pos- session and title are alleged by the former to be fraudulent, it is important to note, that the officer or creditor must not rely merely on the production of the attachment, but must go further, and prove the defendant's indebtedness, and also that the attach- ment was regularly issued. A failure to prove either of these matters will be fatal to the defence.^ § 226. The lien of an attachment extends only to the property which has been actually subjected to its action. It cannot con- structively reach the property of one who has been summoned as garnishee. Therefore, where one who had been so summoned died, pending the proceedings against him, and his administrator was made a party to the suit as his representative, and judgment was rendered against the administrator, on account of a debt due from the intestate to the attachment defendant ; it was held, that this judgment was not entitled to priority over any other debts of the intestate, as the attachment was no lien upon his effects, and the plaintiff could acquire no greater interest under the attach- ment proceedings, in tlie debt of the garnishee to the defendant, than the defendant himself would have had if no attachment had been raade.^ § 227. The lien of an attachment is not limited to the amount for which the writ commands the officer to attach ; but is com- mensurate with the amount of the judgment and costs, though that be greater than the sum which the precept of the writ required the officer to secure.^ But this is not to be understood as authorizing a judgment in the attachment suit for any other cause of action than that for which the attachment was issued. If the plaintiff take judgment for more than was then due him, with interest, he cannot, as against other attaching creditors, sustain his attachment for the excess. Thus, where a debt was 1 Lawrence v. Bank, So Xew York, Van Etten v. Hurst. G Iliid. 311 ; Tliorn- 320; Thurber v. Blanck, 50 Ibid. 80. burgh i-. Hand, 7 California, 554. See Reubens v. Joel, 3 Kernan, 488 ; ^ Parker i-. Farr, 2 Browne, 331 ; Parker Mills V. Block, 30 Barbour, 549. v. Parker, 2 Hill Ch'y, 35. - Noble 1-. Holnaes, 5 HiU (N. Y.), 194; ^ Searle v. Preston, 33 Maine, 214. [207J § 229 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. payable by instalments, one falling due in May, and one in Sep- tember ; and in the intervening July an attachment was sued out on that which matured in May : and in the following December the plaintiff took judgment for both instalments; it was held, that, as against a junior attach er, he could hold only the amount of the INIay instalment, with interest.^ § 227 a. The judgment which the attached property must answer is that which the plaintiff may ultimately recover, and not merely that which he may in the first instance obtain. Hence, if the judgment in the court in which the attachment suit was instituted be for only a part of the plaintiff's claim, and he appeal therefrom, the defendant is not entitled, pending the appeal, to have the attachment discharged on payment of the part awarded him.^ § 228. As the whole office of an attachment is to seize and hold property until it can be subjected to execution, its lien is barren of any beneficial results to the plaintiff, unless he obtain judgment against the defendant, and proceed to subject the property to execution. A judgment for the defendant, therefore, destroys the lien, and remits the parties to their respective posi- tions before the attachment was levied.^ § 229. An attachment takes precedence of a junior execu- tion ; ^ and a purchaser of land under an attachment will prevail against a purchaser under a judgment obtained after the levy of the attachment, though the judgment in the attachment suit was 1 Syracuse City Bank v. Coville, 19 3 Clapp v. Bell, 4 Mass. 99; Johnson Howard Bract. 385. The question does v. Edson, 2 Aikens, 299 ; Suydam v. not appear to have been raised, whetlier Ilujjgeford, 2-3 Pick. 405 ; Hale v. Cum- the taking of the judgment for more than mings, 3 Alabama, 398 ; Lamb v. Beldcn, was sued for did not wliolly dissolve the 10 Arkansas, 539 ; O'Connor v. Blake, 29 attachment as to subsequent attachers. California, 312. Had it been, the court would hardly have * Goore v. McDaniel, 1 McCord, 480 ; hesitated to sustain it, as was done in a Van Loan ?'. Kline, 10 Johnson, 129 ; similar case in Michigan. Hale v. Chan- Lummis v. Boon, 2 Pennington, 731 ; dler, 3 Michigan, 531. Such a ruling would Pond v. GriflRn, 1 Alabama, 078; Beck have been fully upheld by tlie cases cited, r. Brady, 7 Louisiana Annual, 1 ; Ilarbi- post, § 282. And see Tunnison v. Field, 21 son t". McCartney, 1 Grant, 172 ; Stock- Illinois, 108 ; Austin v. Burgett, 10 Iowa, ley v. Wadman, 1 Houston, 350 ; Hus- 302. bands v. Jones, 9 Bush, 218. 2 Wright V. Rowland, 4 Abbott Ct. of Appeals, 649. [208] CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. § 230 subsequent to the other.^ The strength of this doctrine was illustrated in a case in Pennsylvania, under a statute which declared that " every writ of attachment executed on real estate shall bind the same ai/ainst purchasers and mortgagees^ On the 18th of January, 1847, an attachment was executed on real estate. In November, 1848, judgment was obtained in the action. In the mean time, several other creditors of the defendant sued out attachments, and caused them to be executed on the same real estate ; and in all those cases the defendant confessed judgments in April, May, and June, 1848. The plaintiffs in these judgments claimed priority of the first attaching creditor, because, though their attachments were later than his, their judgments were earlier ; and it was contended, on their behalf, that the lien of the first attachment bound the property only as against subsequent imrcliasers and mortgagees ; but it was held, that though a judgment creditor was neither a purchaser nor a mortgagee, and therefore not within the letter of the law, yet he was within its equity ; and the priority of the first attachment was sustained.^ And so, where mortgages of personalty are, by law, declared inoperative against creditors and purchasers with- out notice, until recorded, the levy of an attachment confers a claim superior to that of an unrecorded mortgage.^ § 230. An attachment in the hands of one officer, levied on personal property, will take precedence of a senior execution, in the hands of another officer, who has not effected a levy.* Thus, where a constable seized certain property, under an attfichment for a sum exceeding fifty dollars, issued by a justice of the peace, and the law required that, in such a case, he should deliver the property to the sheriff, to be sold, if required to satisfy the attachment, which was done ; and the sheriff, instead of holding the property subject to the attachment, levied on it an execution that was in his hands before the attachment was levied ; this was held a wrongful act, which would enable the constable to main- tain replevin against the sheriff for the property.^ 1 Eedus V. Wofford, 4 Sinedes & Mar- ^ Scliacklett & Clyde's Appeal, 14 shall, 57!) ; American Ex. Bank v. Morris Penn. State, 326. C. & B. Co., G IliU (N. Y.), 302; Martin 3 Hardaway v. Semmes, 38 Alabama, V. Dryden, 6 Illinois (1 Cilman), 187; 657. Baldwin v. Leftwich, 12 Alabama, 838; * Field y. Milburn, 9 Missouri, 492. Tappan v. Harrison, 2 Humphreys, 172 ; ^ Bourne v. Hocker, 11 B. Monroe, 23. Oldham v. Scrivener, 3 B. Monroe, 579. 14 [209] § 231 EFFECT^ND OFFICE OF AN ATTACHMENT. [ CHAP. VIII. § 231. Unless otherwise directed by statute, attachments take precedence, and are entitled to satisfaction, in the order, in point of time, of their service ;^ and if the proceeds of the attached property be more than sufficient to satisfy the execution of the first attacher, the surplus is applicable to the claims of the subse- quent attachments.^ 1 Robertson v. Forrest, 2 Brevard, 350 ; Farmers' Bank v. Day, 6 Grattan, 4G6; Crowninshield v. Strobel, Ibid. 80; 360; Greenleaf v. Mumford, 30 Howard Emerson v. Fox, 3 Louisiana, 183 ; Atlas Pract. 30 ; 19 Abbott Pract. 469. Bank v. Naliant Bank, 23 Pick. 488 ; Wal- 2 Wehle v. Butler, 35 New York Su- lace V. Forrest, 2 Harris & McHenry, perior Court, 215. 261; Talbot v. Harding, 10 Missouri, [210] CHAP. IX.] ATTACHMENT OF EEAL ESTATE." § 234 CHAPTER IX. ATTACHMENT OP REAL ESTATE. § 232. It would be inconsistent with the scope and design of this work to set forth the law of each State as to the interests in real estate which are subject to attachment. It may be stated, however, that the general principle which confines the right of attachment of tangible property to such interests therein, or descriptions thereof, as can be sold, or otherwise made available under execution, to satisfy the plaintiff's demand, applies as well to real as personal property. § 233. Whether real estate can be attached, when the defend- ant has sufficient personal property, accessible to the officer, out of which to make the debt, must, in like manner, depend on the statutes of each State, and the terms of the writ under which the officer acts. It may be considered a sound doctrine, that, in the absence of any positive limitation of the right of attachment, real estate may be as well attached as personalty ; and that the exist- ence within the knowledge of the officer of a sufficiency of the latter, which he might seize, will not invalidate an attachment of the former. This was so held, where the statute directed attach- ments to be served by attaching the goods or chattels of the defendant, or if none could be found, by attaching his person or land.i § 234. Another established principle affects with peculiar fit- ness attachments of real estate, — that the attachment can ope- rate only upon the right of the defendant existing ivhen it is made. If, prior to the attachment, he had sold and conveyed the land, in good faith, but the vendee did not put the deed on re- cord until afterward, but did so before a sale of the land under 1 Isham V. Downer, 8 Conn. 282 ; Weathers v. Mudd, 12 B. Monroe, 112. [211] § 234 ATTACHMENT OF EEAL ESTATE. [CHAP. IX. execution, it cannot be held for the debt of the vendor.^ Nor, on the other hand, can any interest which the defendant subse- quently acquires be reached by it. This principle was applied in the following case. The Commonwealth of Massachusetts, in 1832, gave a bond for title to real estate to P., and in August, 1836, executed to him a deed in pursuance of the bond. Prior to the last-named date, P. conveyed by deed of warranty an interest in the lands to parties from whom, by intermediate con- vej^ances, that interest came to be vested in S. In 1835, S. con- veyed by warranty deed to C, but the deed was not recorded till 1839. In May, 1836, that interest was attached as the property of S., and sold in 1841, under the execution in the attachment suit, and bouglit by P., the original obligee in the bond from Massachusetts. The question of title came up in a suit by C. against P. for a proportionate part of the value of timber cut by the latter from the land. On behalf of C. it was claimed, that the title made by Massachusetts in 1836, enured to C.'s benefit, by virtue of the various conveyances, with warranty, beginning with tliat from P. and ending with that from S. to C. On the other hand, it was urged in support of P.'s title that the attach- ment through which he claimed, having been laid on the land before the deed from S. to C. was recorded, and therefore before it could take effect against the attachment plaintiffs, by its regis- try, gave to the attachment plaintiffs the same title which would have enured to them, by the doctrine of estoppel, if they had held under a deed with covenants of warranty recorded at the time of the attachment, and that their right passed to P. This claim on behalf of P. was repudiated by the court in these terms ; " The purpose of an attachment upon mesne process is simply to secure to the creditor the property which the debtor has at the time it is made, so that it may be seized and levied upon in satis- faction of the debt, after judgment and execution may be obtained. The title to the property remains unchanged by the attachment. " An attachment can operate only upon the right of the debtor existing at the time it is made. No interest subsequently acquired by the debtor can in any manner be affected by the return thereof, when none was in him at the time. 1 Cox V. Milner, 23 Illinois, 476 ; Sa- 45 California, 101 ; Harral v. Graj% 10 very v. Browning, 18 Iowa, 246 ; Reed v. Nebraska. 186 ; United States v. How- Ownby, 44 Missouri, 204 ; Sappinirton v. gate, 2 Mackey, 408. Oeschli, 40 Ibid. 244 ; Plant v. Smythe, [212] CHAP. IX.] ATTACHMENT OF REAL ESTATE. § 235 " We have been directed to no case, and it is believed that none can be found, where a title has been held to enure to a creditor from an attachment upon a writ by way of estoppel, as from a deed with covenants of warranty, where there is no title of the debtor upon which the attachment can operate. Upon the principle contended for, it would be in the power of a cred- itor, by a return of an attachment upon mesne process, to secure to himself any interest in real estate which his debtor might obtain subsequently thereto, if the interest should be attachable. " At the time the attachment was made, S. had no title what- ever in the land, nor had he seisin or possession. If he had made no conveyance till the title had passed from the Common- wealth of Massachusetts to P., the attachment would be entirely without effect against him, but the title of the Commonwealth would enure to his benefit alone. The levy of an execution at the same time would be a nullity, and the return of full satisfac- tion thereon would not prevent the issue of a new execution upon scire facias. When the levy was made upon the execution obtained from the judgment recovered, the title had passed from the Commonwealth of Massachusetts to P., and the same enured to S., and instantly to C." ^ § 235. The question has frequently arisen, whether a mort- gagee of real estate has an attachable interest therein. It has been held in several States, that before an entry for condition bro- ken, with a view to foreclosure, such interest cannot be taken in satisfaction of a judgment and execution against him. This doc- trine has been so frequently discussed, and reaffirmed, that it may be considered fully established. Whether his interest is so changed by such entrj^ that it becomes attachable, is a question which does not appear to have been distinctly presented for adju- dication, except in Maine. In several opinions, courts had care- fully limited the doctrine to the cases before them, where there had been no entry for a breach of the condition, or where the mortgagor was in possession ; and in others, they intimated, in terms far from implying doubts, that the respective rights of the parties to a mortgage were not materially changed by the entry of the mortgagee. Before the Supreme Court of Maine, however, the question was broadly presented, and after a full and careful 1 Crocker v. Pierce, 31 Maine, 177. [213] § 236 a ATTACHMENT OF EEAL ESTATE. [CHAP. IX. examination, it was decided that the interest of a mortgagee can- not be attached any more after entry than before.^ § 236. The requisites of an attachment of real estate are gen- erally determined by statute. Where, however, that is not the case, the rule which has obtained in Maine, Massachusetts, New York, and Texas, would probably be received and applied, — that it is not necessary for the officer to go upon the land, or into its vicinity, or to see it, or do any other act than make return upon the writ that he has attached it.^ He has no right to take actual exclusive possession of the property, or in any way to disturb the possession of the occupants.^ - § 236 a. The officer's return upon the writ is the only evidence of a valid attachment of real estate. He must make such a return as, under the governing statute, will create a lien. He must not only comply, in fact, with the statute, but his return must show that he has so complied. A return which does not show a compliance with the essential requirements of the statute, creates no lien, as against third persons. Thus, under a statute requiring an officer who has levied an attachment on real estate to file within five days thereafter, in the office of the register of deeds, in the county in which the land is situated, an attested copy of his return of attachment, together with the names of the parties, the sums sued for, the date of the writ, and the court to which it is returnable ; it was held, that a return of an attach- ment which did not show that an attested copy was filed as required by the statute, created no lien oA the land ; and that the return could not be amended so as to affect the title of an intervening purchaser, unless there was sufficient appearing by the unamended return to give third parties notice that all the requirements of law had probably been complied with.'^ 1 Smith V. People's Bank, 24 ISIaine, Bonner, 55 Barbour, 9 ; Ilancock v. Ilen- 185 ; Lincoln v. White, .30 Ibid. 291 ; derson, 45 Texas, 479. Thornton v. Wood, 42 Ibid. 282. See » Wood v. Weir, 6 B. Monroe, 544. Courtney v. Carr, G Iowa, 2.38. ^ Berry v. Spear, 13 Maine, 187 ; Fair- 2 Crosby v. Allyn, 5 :Maine, 453 ; Per- field v. Paine, 23 Ibid. 498 ; Carlcton v. rin y. Levcrett, 13 Mass. 128; Taylor v. Rycrson, 50 Maine, 438; Milliken v. Mixter, 11 Pick. 341; Burkhardt v. Mc- Bailey, Gl Ibid. 31G; Bessey v. Vose, ClcUan, 15 Abbott Pract. 243, note; 1 73 Ibid. 217. Abbott Ct. of Appeals, 203; Ilodgera v. [214] CHAP. IX.] ATTACHMENT OF REAL ESTATE. § 237 § 237. In making such return, a distinction is taken between the levy of an attachment, which is a mere lieu on the property, and the levy of an execution, by which, when carried to a sale, the defendant's property is devested. In the latter case greater precision is required than in the former. Hence it has been con- sidered, in the case of an attachment, that any words which clearly designate and comprehend the property attached, are sufficient.! In such case, too, the generality of the description makes no difference, if it be sufficiently intelligible to fix the lien of the process. Id cerium est quod certum reddi jJotest, and there- fore, if the land be at all intelligibly indicated, the applica- tion of this principle will remove objections that might exist on the score of imperfection in the description.^ It has, therefore, been held, that a return of an attachment of the defendant's interest in the farm he lives on is sufficient.^ So, an attachment of all the defendant's interest in " a certain parcel of land situate on Pleasant Street in Boston," will suffice, if the defendant was interested in only one parcel on that street.* And v/here an officer returned that he had " attached the homestead farm of the defendant, containing about thirty acres, more or less ;" this was held a sufficient description of the farm, although in fact it contained about 150 acres ; the statement of the number of acres being rejected as a mistake in the officer, or as repug- nant to the more general description.'^ In Massachusetts *" it was held that an attachment of " all the defendant's interest in any real estate in the county of W." was sufficient ; and so, in that State ' and New Hampshire,^ of an attachment of the defendant's " right and interest in any lands in the town of E." But in Maine, such a return is considered void for uncertainty.^ And so, of an attachment of a defendant's " life-estate in all the lands got by his wife, supposed to be 450 acres." '^^ And so, of an attachment of " one half of lot 60," without designating which half.^^ And so, of an attachment of " lot No. 5 in block No. 12." 12 In jNIissouri, this case occurred. An attachment was levied 1 Taylor v. Mixter, 11 Pick. 341. T Taylor v. Mixter, 11 Pick. 341. 2 Crosby v. Allyn, 5 Elaine, 453. ^ Moore v. Kidder, 55 New Hamp. 488. 8 Howard v. Daniels, 2 New Hamp. ^ Hathaway v. Larrabee, 27 Maine, 137 ; Taylor v. Mixter, 11 Pick. .341. 449. * Whitaker v. Sumner, 9 Pick. 308. 1^ Fitzhugh v. Hellen, 3 Harris & John- See Lambard v. Pike, 33 Maine, 141. son, 200. 5 Bacon v. Leonard, 4 Pick. 277. ^ Porter v. Byrne, 10 Indiana, 146. 6 Pratt r. Wheeler, 6 Gray, 520. 12 Jiguley v. Zeigler, 23 Texas, 88. [215] § 239 ATTACHMENT OF REAL ESTATE. [CHAP. IX. upon the undivided interest of the defendant in " the south half of the south-east quarter of section 17, T. 57, R. 35, containing eio"hty acres." Tliis property had, prior to the attachment, been subdivided by the owners into blocks and lots, with streets dedi- cated to public use separating the blocks, and some of the lots had been sold to third persons, and were occupied by tliera. Judgment and execution were obtained in the attachment suit, and the sheriff proceeded to sell a number of the lots laid out in the property described in the levy of the attachment. The pur- chasers claimed that they had acquired the defendant's undivided interest in these lots ; but it was held that the original levy was void for uncertainty, and that it should have described the prop- erty levied on with as much certainty as a sheriff's deed.^ § 238. Is it necessary to the validity of an attachment of real estate, with reference to the title acquired through the attach- ment proceedings, that the return should state the property to be the defendant's ? In the light of the authorities cited in a previous chapter,^ it would seem that this question should be answered in the negative. § 239. The effect of an attachment of real estate is to give the plaintiff a lien upon the property from the date of the service of the writ. By the act of attaching, no estate passes to the plain- tiff,3 or to the attaching officer ; * nor is the interest or the posses- sion of the defendant devested ; nor does the officer or the plaintiff acquire any right of possession, or right to take the issues or profits. It merely constitutes a Hen, which can be made avail- able to the plaintiff only upon condition that he recover a judgment in the suit, and proceed according to the existing law to subject the property to sale under execution.^ And this lien has been held to be as specific as if acquired by the voluntary act 1 Henry v. Mitcl.cll, 32 Missouri, 512. Banks, 59 Ibid. 311 ; PlnUips v. Ash G3 2 Ante § 207 Ibid- 414. In Missouri, it was hclcl, that 8 Lyon V. Sanford, 5 Conn. 544. this lien is not h)st, so as to give priority 4 Scott t'. Manchester Print Works, 44 to a junior judgment, by an agreement New Hamp 507. between the attaching plaintiff and de- 6 Taylor v. Mixter, 11 Pick. 341 ; Scott fcndant, that if the latter will confess V. Manchester Print Works. 44 New judgment, execution shall be stayed for Hamp. 507 ; Saunders v. Columbus L. I. one year. Ensworth v. King, 50 Mis- Co., 43 Mississippi, 583; McCIellan i'. souri, 477. Lipscomb, 5G Alabama, 255; Grigg v. [216] CHAP. IX.] ATTACHMENT OF RExiL ESTATE. § 241 of the debtor, and to stand on as high equitable ground as a mort- gao-e.i And where a debtor's equity of redemption of mortgaged land was attached, it was decided, that the attachment created a lien which entitled the plaintiff to redeem, and that a decree of foreclosure on a bill brought after the service of the attachment, did not affect the rights of the attaching creditor, unless he were made a party to the suit.^ And where an attachment was levied on laud which had been previously conveyed by the attachment defendant, and the conveyance was, in a proceeding by other creditors, in chancery, instituted after the attachment, decreed to be fraudulent and void; it was held, that the attachment lien was entitled to hold the land, in preference to the other creditors, with the same effect as if the fraudulent conveyance had never been made.^ § 240. It has just been stated, that the levy of an attachmenl> upon real estate does not confer upon the attaching officer any right to take the issues and profits thereof. It may be added that, unlike the case of a levy on personalty, he acquires no lien upon, or special property in, the land. He is not required or authorized to take possession of it, nor in any event is he accountable for it, or for its rents, issues, or profits. His agency and authority are terminated whenever the duties are performed for which the pro- cess was put into his hands. The lien created by the attachment, whatever may be its character, is in the attaching creditor, and he only can release or discharge it. Where, therefore, the law required, in order to a valid attachment of real estate, that a copy of the writ, with the officer's return thereon, should be deposited in the office of the town clerk, and that was done ; but the officer afterwards withdrew the copy from the town clerk's office, and erased his return therefrom, and substituted a return of an attach- ment of personalty ; it was held, that such withdrawal and erasure did not affect the plaintiff's lien on the property.* § 241. The right to attach real estate extends as well to undi- vided interests as to interests in severalty. Therefore, where land descended to several children, who made partition of it among ^ Carter v. Champion, 8 Conn 540. ^ McKinney v. Farmers' Nat. Bk., 104 2 Lvon V. Sanford, 5 Conn. 544 ; Chan- Illinois, 180. " dler V. Dyer, 37 Vermont, 345. ^ Braley v. French, 28 Vermont, 546. [217] § 242 ATTACHMENT OF EEAL ESTATE. [CHAP. IX. themselves by deed, and a creditor of one of the children, not having either actual or constructive notice of the partition, at- tached all his debtor's undivided share in the estate ; it was held, that the attachment created a lien which was not defeated by the partition.! And where an attachment was levied on the undivided interest of a debtor in a tract of land, and his co-tenant after- wards filed a petition for partition and obtained it, without any notice, actual or constructive, to the attaching creditor, who per- fected his judgment, obtained execution, and levied it on the debtor's undivided interest, and then instituted suit for a par- tition ; it was held, that the first partition, pending the attach- ment, did not affect the rights of the attaching creditor, and partition was decreed in his favor.^ And where an attachment was laid on a debtor's undivided interest in real estate, and, pending the attachment, a partition of the land was had, and the debtor's purparty set off to him in severalty, and the execution in the attachment suit was levied on the part so set off; it was decided that the lien of the attachment continued, notwithstand- ing the partition, and that the execution was properly levied on the several property .^ § 242. The time when an attachment of real estate is actually effected might, in many instances, be of much importance. It would seem to be an undoubted principle, that such attachment would have no force until completed according to the existing statutory requirements. This view is sustained by a case in New Hamj)shire, which arose under the statute of that State, requiring a copy of the original writ and return to be left with the town clerk, in order to constitute an attachment. A. conveyed to B. certain real estate on the 10th of May, and the deed was recorded on the 13th of that month. On the 11th of the same month the premises were attached under a writ issued against A., and on that day the sheriff left with the town clerk a copy of the writ and his return thereon. Some time after the deed from A. to B. was recorded, the officer who served the attachment obtained access to the files of the town clerk, and, without the knowledge of either party, altered the copy of his return left there, and having made a similar alteration in his return upon the original 1 Mc^Ieclian v. Cxriffinfr. Pick. 537. « Crosby v. AUyn. 5 Maine, 453 ; Ar- 2 Munrne v. T,uke, 19 Pick. 39. gyle v. Dwinel, 29 Ibid. 29. [218] CHAP. IX.] ATTACHMENT OF REAL ESTATE. § 242 writ, caused the writ to be returned. It was upon this amended return that the real estate was afterwards subjected to execution, and the purchaser under the execution was brought in conflict with the grantee in the deed. The court was of opinion that no valid attachment was made until the amended copy of the return was left with the town clerk, and as that took place some time after the deed was recorded, the grantee in the deed was entitled to hold the land.^ ^ Cogswell V. Mason, 9 New Hamp. 48. [219] § 244 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. CHAPTER X. ATTACHMENT OF PERSONAL PROPERTY. § 243. Under this head will be considered, I. What interests in, and descriptions of, personal property may be attached ; and II. The requisites of a valid attachment of personalty. § 244. I. What Interests in, and Descriptions of, Personal Property may he attached. The first general proposition on this point is, that property which cannot be sold nnder execution cannot be attached.^ Of course the correlative follows, that whatever may be sold under execution may be attached.^ Money ma}^ be attached in specie,^ and may be taken from the defend- ant's possession, if the officer can take it without violating the defendant's personal security.* Bank-notes also may be at- tached,^ and so, it is said, may treasury-notes of the United States.^ Stock in a corporation cannot be attached unless authorized by express statute;' and in any State where such attachment is authorized, the authority extends only to the stock of corporations existing in that State, and not to that of corpo- rations in other States.^ The attachment of the stock of a stock- holder has no effect to incumber the property of the company, or to prevent its assignment thereof.^ 1 Pierce v. Jackson, G I\Iass. 242 ; Parks ^ Spencer v. Blaisdell, 4 New Hamp. V. Cusliman, 9 Vermont, 320; Halsey v. 198. Whitnej', 4 Mason, 20G ; Davis r. Garret, ^ State v. Lawson, 7 Arkansas, 391 : 3 Iredell, 459 ; Nashville Bank v. Rags- State v. Taylor, 5G Missouri, 492. dale, Peck, 296 ; Myers v. Mott, 29 Call- ' Haley v. Reid, 16 Georgia, 437 ; fornia, 359. Nashville Bank v. Ragsdale, Peck, 29G; 2 n.-indy V. Dohbin, 12 Johnson, 220; Foster v. Potter, 37 Missouri, 525; Howe Spencer r. Blaisdell, 4 New Hamp. 198; r. Starkweather, 17 Mass. 240 ; Merchant's GoU V. Ilinton, 7 Abbott Pract. 120. IM- I- Co. v. Brower, 38 Texas, 230. 8 Turner v. Fendall, 1 Cranch, 117 ; ^ Moore v. Gennett, 2 Tennessee Ch'y, Sheldon v. Root, 16 Pick. 567 ; Handy v. 375 ; Plympton v. Bigelow, 13 Abbott's Dobbin, 12 .Johnson, 220. New Cases, 173. * Prentiss v. Bliss, 4 Vermont, 613. » Gottfried v. Miller, 104 United States, 521. [220] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 244 a § 244 a. Property exempt by law from execution cannot be attached, unless the defendant consent, or be proceeded against as a non-resident ; ^ or, as held in Pennsylvania, unless he shall have fraudulently concealed other property liable to attachment.^ This rule is not, however, to be extended beyond its terras, as expressed. If the party who might avail himself of the exemp- tion, sell the exempted property, a debt due him therefor may be attached. 3 An officer levying an attachment upon property exempt from execution is liable to the defendant as a trespasser, if he know that it is exempt.* But in order to enforce this liability, the defendant, if aware of the levy, must, at the time, claim the exemption, or he will be considered to consent to it.^ Manifestly, he cannot set up such a claim after judgment rendered against him in the attachment suit.^ If the property is a part of a larger quantity than the law exempts, the defendant must, at the time, set apart such portion as he is entitled to under the exemption, or he will be held to have waived his right." And if the debtor is entitled to hold, exempt from attachment, one or the other of two articles, but not both, he must make his election when the attachment is made, if he have the opportunity to do so, or he will be held to have waived his privilege.^ In an action against the attaching officer for trespass in attach- ing exempt property, the burden of proof is upon the plaintiff to establish the actual fact of exemption, and notice thereof to the officer. Thus, where groceries and provisions were attached, and it appeared that they were part of a quantity kept by the plaintiff in his house, both for sale and for the use of his family ; and the plaintiff failed to prove that he had set apart or claimed any of them as exempt, it was held, that he could not make the 1 Yelverton v. Burton, 26 Penn. State, ^ gcott v. Brigham, 27 Vermont, 561 ; 351 ; McCarthy's Appeal, 68 Ibid. 217 ; Knabb v. Drake, 23 Penn. State, 489. Board of Commissioners v Riley, 75 * Atite, § 195. Nortli Carolina, 144. 5 Hadley v. Bryars, 58 Alabama, 139; 2 Emerson v. Smith, 51 Penn. State, Behymer v. Cook, 5 Colorado, 395. 90; McCarthy's Appeal, 68 Ibid. 217. « state v. ^Slanly, 15 Indiana, 8; Per- In Alabama the Supreme Court said : kins v. Bragg, 29 Ibid. 507. ^ " It may be gravely doubted whether the "^ Nash v. Farrington, 4" Allen, 157 ; law of exemption of this State can be Clapp v. Thomas, 5 Ibid. 158; Smith v. invoked in favor of absconding debtors, Chadwick, 51 Maine, 515. and debtors about to remove out of tliis ^ Colson v. Wilson, 58 Maine, 416 ; State." McBrayer v. Dillard, 49 Ala- Buzzell v. Hardy, 58 New Hamp. 331. bama, 174. [221] § 244 C ATTACHMENT OF .PERSONAL PROPERTY. [CHAP. X. officer liable.^ So, where corn was attached, which was part of a crop raised by the attachment defendant, of which he had sold a part, and with a part fed his cattle and swine, and all of which was kept in a building separate from his dwelling without any portion being set apart for the use of his family ; it was held, in an action for trespass against the officer, that the plaintiff must prove the corn to have been procured and intended by him as provision for his family.^ So, where an officer attached two arti- cles of household furniture, he was held not liable, because the plaintiff did not prove that he had not left other household furniture sufficient in kind and value to make up the amount exempted by law.^ So, where a debtor was entitled to one cow exempt from attachment, and an officer attached a cow of the debtor's, and was sued for trespass ; it was held necessary to a recovery for the plaintiff to show that the cow was the only one he owned.* So, where articles of furniture were attached, it was held necessary, in order to charge the officer as a trespasser, for the plaintiff to show that they were a part of his household effects, and therefore exempted from attachment.^ If the law require the officer to have an inventory and appraise- ment of attached goods made, he has a right to hold the goods until that can be done ; and he will not be liable to an action of trespass for unlawfully taking goods exempt from attachment, until he has time to make the inventory and appraisement.^ § 244 h. As to articles of personal property, each of which is of such a kind as to have a separate identity, and to be easily dis- tinguishable from all others, as in the case of animals, for example, the Supreme Court of Massachusetts said, it is always understood that it is the duty of the officer to leave in the owner's possession as many of each kind as are exempted from seizure ; and that the omission of the owner to make an election which animals he will hold as exempt, is no waiver of the exemption.^ § 244 c. Property, the sale of which is penal, cannot be at- tached. Where, therefore, the sale of spirituous liquors was forbidden by law, it was held, that they could not be attached, J Nash V. Farrington, 4 Allen, 157. * Bourne v. Merritt, 22 Vermont, 429. 2 Clapp V. Thomas, 5 Allen, 158. ^ Bonncl v. Dunn, 5 Dutcher, 435. 3 Gay 1-. Southworth, 113 Mass. 333. 7 Savage v. Davis, 134 Mass. 401; ♦ Howard v. Farr, 18 New Hamp. 457. Copp v. Williams, 135 Ibid. 401. [222] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 244 d because their subsequent sale under execution would be illegal.^ And where, under a law of that description, liquors were deliv- ered to a railroad company for transportation, and were attached and taken from it in a suit against the owner, and the company was sued by the owner for failing to deliver the liquors accord- ing to the contract ; it was held, that the attaching officer was a trespasser in seizing the liquors, and that the company was liable, though the attachment was made without fraud or collu- sion on its part, against its will, and with no knowledge that the property attached was spirituous liquor.^ § 244 d. One of the indications of the tendency to extend the operation of the remedy by attachment is the recent adoption in several States of provisions authorizing the seizure of evidences of debt, and their sale under execution. In New York, for instance, the words " personal property," as used in the Code of Procedure, are declared to include " money, goods, chattels, things in action, and evidences of debt." Under this Code, an attachment was obtained against a railroad company, and was attempted to be levied on certain bonds made by the company, which had never been negotiated, but were deposited with a creditor of the company, as collateral security for moneys advanced. It was held, that they were not things in action or evidences of debt, subject to levy, as no purchaser of them could acquire any right to enforce them against the company.^ In Wisconsin, under a statute of similar character, authorizing the attachment of " notes, accounts, and other evidences of debt," and their collection by the sheriff, it was held, that those evi- dences of debt which may be attached by seizure, are only such as are complete and perfect evidences in themselves ; and it was determined that account-books were no such evidence ; that their seizure did not vest the sheriff with any right to collect any ac- count contained in them ; and that the only way to reach an in- debtedness of such character was by garnishment of the debtor ; and that such a* garnishment, after the sheriff's seizure, would hold the debt.* And so in Minnesota.^ 1 Nichols V. Valentine, 36 Maine, 322. ^ Qoddington v. Gilbert, 5 Duer, 72 ; Sed contra, Howe v. Stewart, 40 Vermont, 2 Abbott Pract. 242 ; 17 New York, 489. 145. * Brower v. Smith, 17 Wisconsin, 410. 2 Kiff V. Old Colony, &c., R. R. Co., ^ Swart v. Thomas, 26 :\Iinnesota, 141 ; 117 Mass. 591. See Ingalls u. Baker, 13 Lesher v. Getman, 30 Ibid. 321 ; Ide v. Allen, 449. Harwood, Ibid. 191. [223] § 245 ATTACIIMEXT OF PERSONAL PROPERTY. [CHAP. X. § 245. A fundamental principle is, that an attaching creditor can acquire no greater right in attached property than the de- fendant had at the time of the attachment. If, therefore, the property be in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in or power over it as to permit him to dispose of it adversely to others, it cannot be attached for his debt.^ Thus, a chattel pawned or mortgaged is not attachable, in an action against the pawner or mortgagor \? and the pawnee may maintain trespass against an officer attaching it, and recover the whole value in damages, though it was pledged for less ; for he is answerable for the ex- cess to the person who has the general property.^ So, goods ordered, with authority to the vendor to draw upon the vendee for the price thereof, cannot be attached for the debt of the latter, before they have been delivered to him, if he failed to pay the draft drawn upon him according to its terms.^ So, goods upon which freight and other charges are due cannot be attached, without paying the freight and charges ; ^ and if an officer pay the freight, in order to get the goods into his possession, he stands, in respect to the lien for the freight, in the place, and has the rights, of the carrier.^ So, goods manufactured by one for another can- not be attached in an action against the general owner ; for the manufacturer has a lien on them for his work and labor." Prop- erty in the hands of a bailee for hire cannot be attached in a suit against the bailor during: the term of the bailment.^ The interest of a lessee of personalty may be attached and sold ; ^ but that of the lessor thereof cannot be, even though the sale of it by the sheriff be with a reservation of the lessee's right to retain posses- 1 Babcock v. Malbie, 7 Martin, x. s. 457 ; Ilavcn v. Low, 2 New Hanip. 13 ; 139; Ilepp v. Glover, 15 Louisiana, 461 ; Anderson v. Doak, 10 Iredell, 295; "\Vil- Powell V. Aiken, 18 Ibid. .'321 ; Dcloach liams r. "Whoples, 1 Head, 401 ; Moore v. V. Jones, Ibid. 447 ; Urie v. Stevens, 2 Murdock, 20 California, 514 ; Adoue v. Eobinson (La.), 251; Oliver v. Lake, 3 Seeligson, 54 Texas, 593. Louisiana Annual, 78 ; Stephenson v. ^ Lyle v. Barker, 5 Binney, 457. Walden, 24 Iowa, 84 ; Provis i'. Clieves, * Seymour v. Kewton, 105 ]\Iass. 272. 9 Rhode Island, 53 ; Manny v. Adams, ^ DeWolf v. Dearborn, 4 Pick. 4G6 ; 32 Iowa, 1G5 ; Samuel v. Agnew, 80 lUi- Wolfe v. Crawford, 54 ^Mississippi, 514. nois, 553. " Thompson v. Rose, 10 Conn. 71. - Badlam ;•. Tucker, 1 Pick. 389; IIol- ^ Townsend v. Newell, 14 Pick. 332. brook V. Baker, 5 Maine, 309; Tiiomp- « Hartford i'. Jackson, 11 New Hamp. son V. Stevens, 10 Ibid. 27 ; Sargent v. 145 ; Truslow v. Putnam, 4 Abbott Ct. of Carr, 12 Ibid. 890 ; Picqiiet v. Swan, 4 Appeals, 425. ^lason, 443 ; Lyle v. Barker, 5 Binney, ° Wheeler v. Train, 3 Pick. 255. [224] CHAP. X.] ATTACHJIENT OF PERSONAL PEOPERTY. § 245 sion during the continuance of the term.^ And where a statute expressly authorized the attachment of the lessor's interest, by- delivering to the lessee a true and attested copy of the process upon which the property is attached, with the return of the officer thereon, describing the property ; which was declared to have the same effect as though the property was taken into the possession of the officer ; it was held, that the attachment could be made in no other way than that prescribed, and that the officer, in taking the property into his possession, and thereby dispossessing the lessee, was a trespasser, and could not justify under the w^it.^ Where property has been consigned to a factor, entitled to a privilege thereon, so that the consignor or owner cannot take it out of his hands without paying his claim, a creditor of the owner can- not attach it. In such a case, wdiere the consignee has made ac- ceptances on account of the property, a creditor of the consignor, wishing to take the property out of the hands of the consignee without paying the amount of his acceptances, must show that the acceptances were not made in good faith, and that the consignee is not bound to pay them.^ And in such case the factor may bring replevin for the property ; and his right to maintain the action will not he defeated by his consenting to become keeper of the goods for the attaching officer.* So, it was held in South Carolina, that a foreign ship and cargo consigned to one in that State could not be attached in a suit against the owner ; the court holding that the consignee has, in contemplation of law, a qualified property in the ship and cargo, and a constructive possession, the moment she comes into port ; and from that moment has the direction and management of her, for the benefit of all concerned ; and that she is under his power and government, and subject to his orders, and he may therefore be considered, in law, as in possession of the whole property. The court intimated that the proper way to attach the property was by garnishment of the consignee.^ A case of not unfrequent occurrence is that of goods being at- tached, where the vendor of them to the defendant is entitled to exercise the right of stoppage in transitu, and exercises that right 1 Smith V. Xiles, 20 Vermont, 315. n. s. 261 ; Skillman v. Bethany, 2 Ibid. 2 Brigham v. Avery, 48 Vermont, 104 ; Brownell v. Carnley, 3 Duer, 9. 602. 4 Sewall v. Nicliolls, 34 Maine, 582; 3 Lambeth v. Turnbull, 5 Robinson Brownell i*. Carnley, 3 Duer, 9. (La.), 204; McNeill v. Glass, 1 :\Iartin, ^ Schepler v. Garriscan, 2 Bay, 224; Mitchell V. Byrne, 6 Richardson, 17L 15 [225] § 245 a ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. while the attachment is pending. In such case the principle announced at the opening of this section undoubtedly applies, and the vendor is not precluded by the attachment from exercis- ing his right of stoppage,^ even though the goods may, by order of the court, have been sold ; he is entitled to the proceeds in the hands of the court.^ § 245 a. The point of time at which one so far loses his power over personalty which he has agreed to sell to another, as that it is not subject to attachment for his debt, is a matter of importance, and sometimes of difficulty. The general principle may be stated to be, that that act which changes the control and dominion of property, after an agreement for a sale, — that which supersedes the power and control of the vendor, and transfers it to the vendee, — is a good delivery to pass the property to the latter, and to defeat its attachment for a debt of the former. Thus, where A., in fulfilment of an agreement for a sale to B., shipped goods at Albany, by railroad, to be forwarded to Boston, taking a receipt or way-bill, making them deliverable to himself, and enclosed to B. a written order making them deliverable to B., who, on receipt thereof, notified the agent of the railroad, and at the same time paid the freight ; it was held, that there was a sufficient delivery to pass the property from A. to B., though the latter had not reduced it to actual possession, and that it could not be attached for the debt of A., either while in transitu or after its arrival at Boston.^ So, where A. advanced 8G,000 to B., on account of pork to be thereafter cut by B., and by him shipped to A. for sale on commission ; and a lot of pork was shipped by rail to A ; and while in the hands of the railroad was attached by a creditor of B. ; it was held that the delivery of the pork by B. to the carrier was equivalent to a delivery to A., and that after such delivery B. retained no such interest in the pork as could be attached by a creditor of B. ; it appearing that the invoice of the pork to A. was accompanied by a letter of advice, stating, " We deliver this load on our indebtedness ; " and also that the value of the shipment was less than the amount of B's indebtedness.* 1 Dickman v. Williams, 50 Mississippi, ^ O'Brien r. Norris, IC Maryland, 122. 500; Cah-ilmn V. Babcock. 21 Ohio State. =» Hatch v. Baylcy, 12 Cuslung, 27. 281 • Inslec r. Lane, 57 New Hanip. 454 ; See Hatch v. Lincoln, Ibid. .''>1. Kell'v i^. Dcming. 2 McCrary, 453 ; 5 Fed- * Straus v. Wessel, 30 Ohio State, 211. eralReportcr, G'.J7. See Johnson v. Sharp, 31 Ibid. Oil. [22G] CHAP. X.] ATTACHMENT OF PERSONAL PEOPERTY. § 246 § 246. The foregoing are instances in which the owner has so far lost his power over the property as that it cannot he attached for his debt. The same result follows in relation to property, in or over which a person has not yet acquired such interest or power as is considered in law to constitute an attachable interest. Thus, where merchants residing in the city of New York received an order for goods from persons residing at a distance, without particular directions as to the manner in which the goods should be forwarded ; and the vendors proceeded to select the goods ordered, and a portion of them, after being packed in boxes, were placed on board a vessel for transportation, the cartman taking from the master of the vessel receipts for each load ; it •was held, that no person but the shipper was entitled to a bill of lading ; and the shipper, being also the holder of the receipts, might direct to whom the bill of lading should be made out, and until he should do so, the right of possession remained in himself; and therefore, that there was no such delivery to the purchasers as rendered the goods liable to seizure under an attachment against them.^ So, where goods are shipped to a factor for sale, to liquidate advances made by him to the shipper, and to hold the balance subject to the shipper's control, the factor acquires no right of property in them until they actually come into his possession, and they ma}^ be attached, while in transitu, as the shipper's property .^ So, where goods were ordered from a mer- chant in Boston by a merchant in New York, to be paid for " on arrival ; " and on their arrival, and while in the possession of the carrier, and unpaid for, they were attached in a suit against the purchaser ; it was held, that he had acquired no title to them, and that the attachment could not hold them.^ So, if goods be sold to one for re-sale, to be accounted for at a future day to the vendor, and if sold, to be paid for, if not, to be returned ; while this arrangement is pending, the vendee has no attachable interest in them.^ So, where, by a parol contract between the parties, A. was to cultivate B.'s farm, find part of the seed, harvest the crop, and then take one-half of it as a compen- sation for his labor, and deposit the other half in such place as 1 Jones V. Brarlner, 10 Barbour, 193. 3 Clark v. Lynch, 4 Daly, 83. See See Scholfield v. Bell, 14 Mass. 40. Bancker v. Brady, 20 Louisiana Annual, 2 Dickman v. Williams, 49 ilississippi, 749. 5C0. * Meldrum v. Snow, 9 Pick. 441. [227] § 246 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. B. should direct ; and before the crop was harvested A. ab- sconded, being insolvent ; it was held, that he had no such interest in the crop as would render it liable to attachment for his debts. 1 So, where A. leased a farm to B., who was to have one-half of the increase and produce, but the stock and produce were to be at A.'s control until sold ; B. had not such an interest in the produce as could be attached.^ So, where, by the terms of the lease of a farm it was stipulated that " all the hay and straw shall be used on said farm," the lessee had no attachable interest in the hay and straw.^ So, where, by an agreement between a father and his son, the father was to carry on business in the name and on account of the son, and as his agent, and the son was to give the father one-half of the profits, as a compen- sation for his services; and some property purchased by the father in the name of the son was attached in a suit against the father ; it was held, that the father had no- attachable interest in the property.^ So, where property is sold and delivered, upon condition that the title shall not vest in the vendee, unless the price agreed upon be paid within a specified time, the vendee has no attachable interest in the property until performance of the condition.^ So, if one acquires by purchase the possession of personal property by fraudulent means, he has not such title thereto as will enable his creditors to attach and hold it as against the person from whom it was fraudulently obtained.^ So, prop- erty consigned to a factor cannot be attached for his debt, though he have a lien on it ; for his lien does not dispossess the owner until the right is exercised by the factor, whose privilege is a per- sonal one, and cannot be set up against the owner by any one but 1 Chandler v. Thurston, 10 Pick. 205. 4 Blancliard r. Coolidge, 22 Pick. 151. 2 Esdon V. Colburn, 28 Vermont, 031 ; ^ Biickmastcr v. Smitli, 22 Vermont, Lewis V. Lyman, 22 Pick. 4:]7. But 203; Woodbury v. Long, 8 Pick. 540; where a lease provided, that all tlie I^IcFarland r. Farmer, 42 New Ilamp. produce deposited on land so leased .",80 ; The Marina, 19 Federal Reporter, should be at the lessor's disposal, and 7G0. that he mislit enter to take it for the 6 p.uffin-ton v. Gerrish, lo Mass. luG; payment of any rent that might be in DeWolf r. Bubbett, 4 Mason, 289 ; Gas- arrcar, it was decided that, as against quet r. Johnson, 2 Louisian^a. 514 ; Tliomp- creditors of the lessee, such a provision son v. Rose, IG Conn. 71 ; Hussey v. was neitlier an absolute sale nor a mort- Tliomton, 4 Mass. 405; Bradley r. Obear, gage, and that the produce covdd be at- 10 New Ilamp. 477 ; Parmelc v. McLaugh- tached for the lessee's debt. Butterfield lin, 9 Louisiana, 43G ; Galbraith v. Davis, V. Baker 5 Pick. 522. 4 Louisiana Annual, 95 ; Wiggin v. Day, 3 Coe V. Wilson, 4G Maine, 314. 9 Gray, 97. [228] CHAP. X.] ATTACHMENJT OF PEESONAL PROPERTY. § 246 the factor himself.^ So, property lent to one cannot be attached for his debt.2 So, a vested remainder in personal property cannot be attached during the continuance of the life estate, and while the property is in the possession of the tenant for life/^ So, where property was, by written agreement, let by A. to B. for eight months, at a weekly rent, with stipulation that it should belong to B. at the end of the term, if the rent should be paid according to the contract ; and, on default of any payment, A. to have the right to take immediate possession, and to retain the payments already made ; and after B. had made several payments, and a final default of payment, the property was attached by a creditor of B., and A. instituted replevin for it: it was held, that the contract did not constitute a sale, but an executory agreement for a sale at a future day ; that A. continued to be the owner; and that B. had no attachable interest in it.* Similar to the foregoing instances is the case of the money of a pensioner of the United States, paid by the disbursing officer of the government to the pensioner's attorney, and attempted to be subjected to attachment in his hands. Such a case arose in Ver- mont, and the court there held, that the money was protected by the act of Congress, so long as it retained the distinctive character of a pension ; which it retained, at least until paid to the pensioner ; and was not therefore liable to attachment in the hands of his agent.^ So, coin paid to an attorney at law, in satisfaction of a 1 Holly V. Huggeford, 8 Pick. 73. On attachment was servefl, nor whether the the point of the lien of the factor being a money had ever yet come into tlie hands personal one, see, also, Kittredge v. Sum- of tlie pensioner. The court, quoting § 61 ner, 11 Pick. 50. of the Pension Law (2 Brightly 's Digest, 2 Morgan r. Ide, 8 Gushing, 420 ; Chase 498), and referring to Kellogg v. AVaite, V. Elkins, 2 Vermont, 290. 12 Allen, 529, simply added " We con- 3 Goode V. Longmire, 35 Alabama, 668 ; elude the fund was not liable to attach- Carson v. Garson, 6 Allen, 397. ment." In Folschow v. "Werner, 51 * Hughes r. Kelly, 40 Gonn. 148. See Wisconsin, 8-5, the court, referring to Goodell V. Fairbrother, 12 Rhode Island, § 4747 of the U. S. Revised Statutes, de- 233. cided that its plain meaning was that the ^ Adams v. Newell, 8 Vermont, 190 ; specific money received by the pensioner Hayward r. Glark, -50 Ibid. 612. Whether from the government in payment of a the pension money can be attached after pension granted to him, cannot, by any it is paid over to the pensioner, is differ- judicial process, be reached by a creditor ently held. In Eckert v. McKee, 9 Busli, and applied to the payment of the pen- 3.5.5, it was ruled that money which had sioner's debt. In Iowa, the reverse was been drawn on a draft for arrears of pen- held. Webb v. Holt, 57 Iowa, 712. And sion, could not be attached ; but the case so in Kansas. Cranz v. White, 27 Kansas, is badly reported, for it does not show in 319. whose hands the money was when the [229] § 247 ATTACHMENT OF PERSONAL PEOPERTY. [CHAP. X. debt held by him for collection, cannot be levied on as the prop- erty of the party for whom it was collected ; for until it is paid over to that party, he acquires no specific interest in the 2^artic- ular pieces of coin, but only a right to receive from the attorney the amount of money collected.^ § 247. An interesting question connected with this topic is, whether a husband has an attachable interest in his wife's choses in action, before he has reduced thera to possession. Upon this subject courts of high authority have taken entirely opposite grounds, and the question cannot be considered as yet settled either way, by weight of authority. In the affirmative it is held, that the wife's choses in action are, in virtue of the marriage, vested absolutely in the husband ; that he has in law the sole right, during the coverture, to reduce them to possession, to sue for them, to sell them, to release them ; and that he has, therefore, an interest in them which he may assign to another, and therefore an interest which may be reached by attachment, and subjected to the paj'ment of his debts. Such are the views expressed in Massachusetts, INIaryland, Delaware, Virginia, and Missouri.^ It is, however, admitted, that if the husband die pending an attach- ment of his interest, and before the same is finallj^ subjected to his debt, the attachment will fail, because of the wife's riglit of survivorship.^ On the other hand, it is considered, — in the lan- guage of the Supreme Court of Pennsjdvania, — "that though marriage is in effect a gift of the wife's personal estate in posses- sion, it is but a conditional gift of her chattels in action ; such as debts, contingent interests, or money owing her on account of intestacy. Perhaps the husband has in strictness but a right to make them his own by virtue of the wife's power over them, lodged by the marriage in his person. But if these be not taken into his possession, or otherwise disposed of by him, they remain to the wife ; and if he destines them so to remain, who shall object ? Not his creditors ; for they have no right to call on him 1 :Max\vell r. McGee, 12 Gushing, 137. Fleetwood, 1 Harrinpton, 442; Babb v. 2 Sliuttlesworth v. Noyes, 8 Mass. Elliott, 4 Ibid. 40G ; Vance v. McLangh- 229; Commonwealth v. Manley, 12 Pick, lin, 8 Grattan, 289; Hockaday v. Sallee, 173 ; Holbrook v. Waters, 1!) Ibid. 354 ; 2G Missouri, 219. Wheeler r. Bowen, 20 Ibid. 503; Strong 3 Strong r. Smith, 1 Metcalf, 47G; r. Smith, 1 Metcalf, 47G ; State ?-. Krebs, Vance v. McLaughlin, 8 Grattan, 289; 6 Harris & Johnson, 81 ; Peacock v. Ilockaday v. Sallee, 2G Missouri, 219. Pembroke, 4 Maryland, 280 ; Johnson v. [230] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 248 to obtain the ownership of the wife's property for their benefit ; and, until he does obtain it, there is nothing in him but a naked power, which is not the subject of attachment." ^ These are substantially the views also of the courts of New Hampshire, Vermont, North Carolina, and South Carolina.^ When such a difference of opinion exists between courts of such acknowledged ability as those which have passed upon this question, the subject must needs be remitted to the future, for a nearer approximation to agreement. § 248. The defendant's interest in personal property need not, in order to its being subject to attachment, be several and exclu- sive. An interest held by him in common with others may be attached ; 3 and the property may be seized and removed, though the rights of the other joint owners may thereby be impaired ; * and the attaching creditor cannot be held liable for the expenses incurred or the damages caused by its detention pending the decision of the attachment suit.^ In such case, only the undivided interest of the defendant can be sold, and the purchaser becomes a tenant in common with the other cotenant,*^ and takes it sub- ject to the incumbrances thereon." If the officer sell the whole, it is, as to the cotenant, a conversion, for which he will be liable to the cotenant in trover.^ In cases of attachment of property jointly owned, if the attachment be dissolved, the officer's liability to the defendant for the property will be discharged by its delivery to the cotenant.^ The doctrine stated in this section 1 Dennison v. Nigh, 2 "Watts, 90 ; Robin- Reed v. Howard, 2 Metcalf, 30 ; Lawrence son t". Woelpper, 1 Wharton, 179. v. Burnham, 4 Nevada, 361 ; "Waldman v. 2 Marston v. Carter, 12 New Hamp. Broder, 10 California, 378 ; Bernal v. 159; Wheeler v. Moore, 13 Ibid. 478; Hovious, 17 Ibid. 541 ; Veach v. Adams, Pickering v. Wendell, 20 Ibid. 222 ; Parks 51 Ibid. 609. V. Cushman, 9 Vermont, 320; Short r. 5 Sibley v. Fernie, 22 Louisiana An- Moore, 10 Ibid. 44G ; Probate Court v. nual, 163. Niles, 32 Ibid. 775 ; Arrington i-. Screws, 6 ^jergej-pau v. Norton, 15 Johnson, 9 Iredell, 42 ; Pressley v. McDonald, 1 179 ; Ladd v. Hill, 4 Vermont, 164 ; Richardson, 27 ; Godbold v. Bass, 12 Veach v. Adams, 51 California, 609. Ibid. 202. ■^ Sibley v. Fernie, 22 Louisiana An- 3 Buddington v. Stewart, 14 Conn. 404 ; nual, 163. Marion v. Faxon, 20 Ibid. 486 ; "Walker ^ Ladd v. Hill, 4 Vermont, 164 ; Brad- V. Fitts, 24 Pick. 191 ; GoU v. Hinton, 7 ley v. Arnold, 16 Ibid. 382 ; White v. Abbott Pract. 120, overruling Stouten- Morton, 22 Ibid. 15; Melville v. Brown, burgh V. Vandenburgh, 7 Howard Pract. 15 Mass. 79 ; Eldridge v. Lancy, 17 Pick. 229, and Sears v. Gearn, Ibid. 383. 352; Walker v. Fitts, 24 Ibid. 191. 4 Remmington v. Cady, 10 Conn. 44 ; 9 Frost v. Kellogg, 23 Vermont, 308. [231] §249 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. applies to cases other than partnerships ; coiiceriiing which there is much diversity of decision. § 249. Where property is of such nature that an attachment of it would produce a sacrifice and great injury to the defendant, without benefiting the plaintiff, it is not attachable. Such is the rule in relation to the defendant's private papers,^ or his books, in which his accounts are kept.^ Much less would an attachment be considered to create a lien on the accounts contained in the books.*^ This rule applies also, in relation to property which is in its nature so peculiarly perishable, that, manifestly, the pur- pose of the attachment cannot be effected before it will decay and become worthless ; as, for instance, fresh fish, green fruits, and the like.* And it has been held, that a growing crop of grass cannot he attached.^ 1 Oystead v. Shed, 12 Mass. 506. 2 Bradford v. Gillaspie, 8 Dana, 67; Oystead v. Shed, 12 Mass. 50G. 3 Ohors V. Hill, 3 McCord, 338. It is very doubtful whether the exemption of books of accounts and negotiable securi- ties from direct attaclimentis not fraught with evil, as it affords an abundant op- portunity for fraudulent concealment of means wliich debtors have for paying their debts. The State of Ohio in its Code of Civil Procedure, adopted in 1853, and the State of Missouri, in 1855, have taken a very important step, which deserves to be followed generally, in au- thorizing the attachment of all books of account, accounts, and securities of the debtor, and placing them in the hands of a receiver appointed by the court, who collects them, and ap])lies the proceeds under the direction of the court. Under a statute requiring the sheriff to attach and " take into his custody all books of account, vouchers, and papers, relating to the property, debts, credits, and etf'ects of the debtor, together with all evidences of his title to real estate ; which he shall safely keep, to be disposed of as di- rected ; " it was held, that letters and correspondence were not attachable ; and that an officer who assumed to e.xamine attached books and papers, and take co[)ies of business letters, and look into the correspondence of the defendant, or [232] do any other act in relation to them, than simply to keep them safely, subject to the direction of the judge who allowed the process, was guilty of an unpardon- able abuse of his powers, and of the pro- cess of the court; and the court ordered the books and papers attached to be kept under lock and key, without power on the part of any one, e.xcept the defendant, to examine them ; and required the officer to deliver up to the defendant's counsel all copies taken by him, and to make oath at the time of the delivery, that such copies embraced all that the officer be- lieved to exist ; and ordered that the ])laintiff's counsel should be restrained from using, in any way, the books and pajiers attached, or disclosing their con- tents, or the contents of copies taken from them. Ilergman v. Dettlebach, 11 Howard Pract. 46. * Wallace r. Barker, 8 Vermont, 440. In Penhallow v. Dwight, 7 Mass. 34, it was held, that an entry on land for tiie purpose of levyingan e.vecutionon unripe corn or other produce, which would yield nothing, but in fact be wasted and de- stroyed by tlie ver}' act of severing it from the soil, would be illegal. But such is not the case where the produ(;e, such as corn and potatoes, is ripe for tiie har- vest. Heard v. Fairbanks, 5 Metcalf, 111. ^ Norris v. Watson, 2 Foster, 3G4. It CHAP. X.] ATTACHMENT OF PERSONAL PEOPEETY. § 251 § 250. Where property is so in the process of manufacture and transition as to be rendered useless, or nearly so, by having that process arrested, and to require art, skill, and care to finish it, and when completed it will be a different thing, it is not subject to attachment. Such are hides in vats, in the process of tanning, which if taken out prematurely and dried, could never be con- verted into leather, or restored to their former condition,^ Such, too, are a baker's dough ; materials in the process of fusion in a glass factory ; burning ware in a potter's oven ; a burning brick- kiln ; or a burning pit of charcoal. In all such cases, the officer cannot be required to attach ; for he should have the right of removal ; and he is not bound to turn artist, or conduct, in per- son or by an agent, the process of manufacture, and be responsi- ble to both parties for its successful termination.^ But where a pit of charcoal was in part entirely completed, so as not to require any further attention or labor, and the residue had so far pro- gressed in the process that it was in fact completed, but some labor and skill were still necessary, in order to separate and pre- serve it properly ; it was held, that if an officer saw fit to attach and take possession of it, and run the risk of being able to keep it properly, he had a right to do so ; and that, if any portion of the coal should, through the want of proper care and attention on his part, be destroyed, the owner could not maintain trespass against him for such non-feasance ; and that the attaching creditor was not liable therefor, unless the omissions were by his command or assent.^ § 251. Property m custodia legis cannot be attached. Thus, goods attached by one officer and in his possession, cannot be attached by another officer ; ^ nor can property which has once been attached, and released to the defendant upon his executing a delivery bond therefor, with sureties, be again attached while liable to be required to be delivered under that bond.' So, goods was, in Massachusetts, sought to estab- might be attached, tliough in such a con- lish the rule that hay in a barn could not dition that it could not be moved without be attached, because of the difficulty of great damage. Cheshire Nat. Bank v. removing it without loss, and of identify- Jewett, 119 Mass. 241. ing it; but the court refused to sustain ^ Bond v. Ward, 7 Mass. 123. that position. Campbell v. Johnson, 11 - Wilds v. Blanchard, 7 Vermont, 138. Mass. 184. And in the same State it ^ Hale v, Huntly, 21 Vermont, 147. was held, that tobacco stored in barns, * Post, § 267. hanging on poles, in process of curing, ^ Post, §§ 267, 331; Roberts v. Dunn, [233] § 251 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. held by a collector of the revenue of the United States, to enforce payment of, or as security for, the duties thereon, are not attachable by a creditor of the importer.^ So, a ship in the possession of a sheriff, under an attachment issued out of a State court, cannot be attached by a marshal of the United States, under a warrant in admiralty.^ Nor can property attached bv an officer of a United States court be taken out of his hands by an officer under process issued by a State court.^ If, however, an officer in possession of goods under a levy, consents that another officer levy an attachment thereon, but without disturbing his possession, and agrees that, after satisfaction of his claims, ho will hold the goods as bailee of the other officer, the second levy is lawful.^ Repeated attempts have been made to levy attachments or ex- ecutions upon money collected under execution ; but such money, while in the hands of the officer who collected it, has uniformly been held to be in custodia legis, and for that and other reasons, not subject to such levy.^ This rule, however, applies only where the sheriff is bound, virtute officii, to have the money in hand to pay to the execution plaintiff ; and not to cases in which he has in his possession, after satisfying the execution, a surplus of money, raised by the sale of property. Such surplus is the property of the execution defendant, and being held by the sheriff in a private, and not in his official, capacity, it may be attached in his hands.^ Upon the principle that property in custodia legis is exempt 71 Illinois, 4G. See Thompson v. Marsh, 135 ; Reddick v. Smith, 4 Illinois (3 Scara- 14 Mass. 269 ; Ilagan v. Lucas, 10 Peters, mon), 451 ; Tliompson v. Brown, 17 Pick. 4QQ 4G2; Conant v. Bicknell, 1 D. Ciiipman, 1 Harris v. Dennie, 3 Peters, 292. 50; Farmers' Bank v. Beaston, 7 Gill & 2 The Robert Fulton, 1 Paine, 020 ; Johnson, 421 ; Jones v. Jones, 1 Bland, The Oliver Jordan, 2 Curtis, 414; Taylor 443; Blair y. Cantey, 2 Speers, 34; Bur- V. Carryl, 24 Penn. State, 259, and 20 rell v. Letson, 1 Strobhart, 239 ; Clymer Howard Sup. Ct. 58-3. See Metzncr v. v. Willis, 3 California, 363 ; Hardy v. Til- Graham, 57 Missouri, 404. ton, 68 Maine, 195. These authorities 8 Frcem.an r. Howe, 24 Howard Sup. bear on the question of seizing tlie money Ct. 450 ; Moore r. Withenburg, 13 Loui- in specie. For those applicable to an at- siana Annual, 22 ; Lewis v. Buck, 7 Min- tempt to reach it by garnishment, see nesota, 104. post, § 506. i Davidson v. Kuhn, 1 Disney, 405. " Orr v. McBride, 2 Carolina Law Re- & Turner v. Fendall, 1 Crancli, 117; pository, 257 ; Watson v. Todd, 5 Mass. Prentiss r. Bliss, 4 Vermont, 513; First 271 ; Davidson v. Clayland, 1 Harris & V. Miller, 4 Bibb, 311; Dubois r. Dubois, Johnson, 546; Tucker v. Atkinson, 1 6 Cowen, 494; Crane v. Freese, 1 Ilarri- Humphreys, 300. son, 305 ; Dawson v. Holcombe, 1 Ohio, [234] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 251 from attachment, money paid into the hands of a clerk or prothon- otary of a court on a judgment,^ or in his possession in virtue of his office, 2 cannot be attached. So, of money paid into court.^ So, of property m the hands of an administrator, which will be- long to the defendant as distributee, after settlement of the administrator's accounts.^ So, property in the hands of an exec- utor cannot be attached in a suit against a residuary legatee or a devisee.^ So, property of a person who has been judicially found to be insane cannot be attached in the hands of his guardian.^ So, where, under a creditor's bill, a receiver has been appointed by the court and placed in charge of the property, the title of which is in controversy, the property cannot be attached by another creditor.''' So, it has been held, that garnishment has the effect to place the property in the garnishee's liands in the cus- tody of the law, and that an officer has no right, after the gar- nishment, to take the property from the garnishee.^ But in Massachusetts, it was decided that, though garnishment is an attachment of the effects in the garnishee's hands, 5^et they may be attached and taken into the possession of the officer, subject to the lien of the creditor who effected the garnishment.^ A case of interest and importance is reported in Louisiana, in which the doctrine now under consideration was applied. A suit in chancery was instituted in Memphis, Tennessee, by stockhold- ers of a bank there, against the bank and its president and di- rectors ; in which a receiver was appointed, an injunction obtained, and an order for the delivery of the assets of the bank to the receiver served on the president ; who, during an unsuccessful attempt to enforce the process of the court, obtained possession of the assets, and ran off with them to New Orleans, where they were attached in his hands by a creditor of the bank, and were claimed in the attachment suit by the receiver appointed by the court in Tennessee. The New Orleans court promptly ordered them to 1 Ross V. Clarke, 1 Dallas, 354 ; Alston ^ Hale v. Duncan, Brayton, 132 ; Ross V. Clay, 2 Hayward (N. C), 171. v. Edwards, 52 Georgia, 24. '■^ Hunt V. Stevens, 3 Iredell, 36-5. " Perego v. Bonesteel, 5 Bissell, GG. 3 Farmers' Bank i-. Beaston, 7 Gill & « Scholefield r. Bradlee, 8 Martin, 495; Johnson, 421; Mattingly v. Grimes, 48 Brashear v. West, 7 Peters, 608; Dennis- Maryland, 102. toun V. New York C. & S. F. Co., 6 Loui- * Elliott '•. Xewby, 2 Hawks, 21 ; Young siana Annual, 782. V. Young, 2 Hill (S. C), 425. 3 Burlingame v. Bell, IG Mass. 318; 6 Thornhill v. Christmas, 11 Rohinson Swett v. Brown, 5 Pick. 178. (La.), 201; Bickle v, Chrisman, 76 Vir- ginia, 678. [235] § 252 ATTACHMENT OF PERSONAL PEOPERTY. [CHAP. X. be released from the attachment, and delivered to the receiver.^ This case is to be distinguished from that of a receiver of a cor- poration, appointed by a court of the State in which the corpo- ration exists, seeking to reclaim property of the corporation in another State, where it was attached by a creditor of the corpo- ration residing in the latter State, before the receiver reduced it to his possession. There it is held, that the attachment will hold the property .2 In Alabama, an attachment was placed in the hands of a sheriff, and, before its levy, a writ of seizure was issued by a court of chancery, and directed to the same officer. With both writs in his hands he attempted to execute both at the same time ; but it was held, that the attachment was inoperative, and must give way ; that he could not qualify and restrict the custody which he took for the court, under the writ of seizure, with the levy of the attachment, unless he had the property under his control ; and the moment he acquired that control, the property was in the custody of the court.^ § 252. It has been attempted to apply in this country the rule of the English law of distress, exempting from seizure whatever is in a party's present use or occupation ; but the attempt has met with only partial success. In Tennessee, a levy on a black- smith's tools while he was using them, was sustained. ^ And so, in Massachusetts, was an attachment of a stage-coach, actually m use Those were instances of personal property not worn about the defendant's person. In regard to property so worn, the Enghsh doctrine in relation to distress was fully adopted in Massachu- setts, in a case where an officer into whose hand the defendant placed a watch, to compare its weight with that of another, took it, under an attachment, from the person of the defendant, by severing a silk band which passed about his neck, and to which the watch was attached. The court ruled that the seiznre was wrongful, and that the watch could not be held under the atLach- 1 Paradise v. Farmers and Merchants' ^ r),i„]op (;. Paterson, F. I. Co., 19 New Bank, 5 Louisiana Annual, 710. See York Supreme Ct. G27. Winsate v. Wheat, G Louisiana Annual, ^ Kea.l r. Sprague, 34 Alabama, 101. 238; Myers v. Myers, 8 Ibid. 309. * HfH "• Douglass, 1 Yerj-t-r, 397. 6 Potter V. Uall, 3 Pick. 3G8. [236] CHAP. X.] ATTACHMENT OF PERSONAL PPwOPERTY. § 253 a ment.i If, however, the officer, acting under other process, law- fully separate the property from the person of the defendant, without the purpose thereby to open the way to its attachment, he may attach it under writs subsequently coming into his liands.2 § 252 a. The property of individuals or corporations who owe duties to the public, is not for that reason exempted from liability to attachment, except so long as it is in actual use in the dis- charge of such duty. Thus, where a steamboat was attached, which was ordinarily employed by her owner in transporting the mail between Xew Orleans and ^Mobile, but at the time of the attachment was not so engaged, and had not a mail on board ; her connection with the mail service was urged as a ground for releasing her from the attachment, because the seizure was a vio- lation of the act of Congress against obstructing the mails ; but this position was overruled, and the attachment sustained.'^ And so in regard to the rolling stock of a railroad.* But where an officer attached a mail wagon and two horses which were at the time in use upon the mail route in carrying the mail, the attach- ment was held to be a violation of the law of the United States against obstructing the passage of the mail, and therefore illegal/^ § 253. It is not necessary that the defendant's property, in order to be subject to attachment, should be in his possession. It may be attached wherever found.^ § 253 a. Personal property found in the defendant's possession is presumed to be his, if nothing appear to the contrary, and may and should be attached as such." If an officer omit to attach it 1 Mack V. Parks, 8 Gray, 517. the vessel were at a wharf, and her cable 2 Closson V. Morrison, 47 New Hanip. and anchor and boat not in use, there 482. was no reason why they might not as 3 Parker v. Porter, 6 Louisiana, 169. well be taken as the harness of a carriage, In Massachusetts the question was raised or the sails and rigging of a vessel when wiiether the boat, cable, and anchor of a separated from the hull and laid up on vessel could be attached and separated shore. Briggs v. Strange, 17 Jlass. 405. from the vessel. Tlie court said that * Boston, C. & M. R. R. Co. v. Gilmore, this might depend upon the situation of 37 New Hamp. 410. those articles in relation to the vessel. ^ Harmon v. Moore, 59 I\Iaine, 428. If taken when in use and necessary to ^ Graighle v. Notnasle, Peters, C. C. her safety, the taking would subject the 245 ; Living.<;tnn v. Smith, 5 Peters, 90. party taking them to damages. But if ' Killey v. Scannell, 12 California, 73. [237] § 254 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. when so found, and when its attachment is necessary for the plaintiff's securit}^ he cannot be excused, unless he prove that, notwithstanding such appearances, the property was not in fact the defendant's, — in which case the burden of proof rests upon the officer ; or unless where there were reasonable grounds to suspect that the defendant was not the owner, the plaintiff re- fused — what the officer in such cases has always a right to de- mand ^ — to indemnify the officer for any mistake he might make in conforming to the plaintiff's direction. ^ In an action against an officer for such an omission the burden of proof of damage is upon the plaintiff: damage cannot be inferred.^ § 253 h. If the owner of goods, to prevent their being attached for his debt, represent that they belong to another ; and the party to whom the representation is made, believing it to be true, attaches the goods as the property of him to whom the owner represented them to belong ; and the owner bring trover for the goods ; he is estopped from showing that his representation was false, though when he made it he had no notice of the debt on which the goods were attached, and had no intention to deceive the party who attached them.* § 254. The possession of personal property, though an indicium of ownership, does not render it liable to attachment for the debt of the possessor who is not the owner, unless, perhaps, his posses- sion be fraudulent and intended for colorable purposes.^ Thus, where a son purchased a farm and stocked it, with a view to fur- nishing a home for an indigent father, and permitted the fatlier to reside and labor there ; the products of the farm were held not subject to attachment for the father's debts.*^ So, where one delivers to a workman materials to be manufactured ; the article into which the materials are wrought cannot, when finished, be attached as the property of the workman, even though he should have put into it materials of his own.'^ 1 Bond V. Ward, 7 Mass. 123; Sibley * Horn v. Cole, 51 New Ilamp. 287. V. Brown, 15 Maine, 185; Smith v. Ci- » Moon v. Hawks, 2 Aikens,3'J0; Wal- cotte, 11 Michi-ran, 38B ; Kanlett v. Blod- cot v. Pomeroy. 2 Pick. 121. gett, 17 New Ilamp. 2D8; Chamberlain ^ Brown v. Scott, 7 Vermont, 57. V. Beller, 18 New York, 115. ^ Stevens v. BrisjECS, 5 Pick. 177; Gal- 2 Bradford v. McLellan, 23 Maine, 302. lup v. Josselyn, 7 Vermont, 334. ' Wolfe V. Dorr, 24 Maine, 104. [238] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 256 § 255. II. Requisites of a valid Attachment of Personalty. When an attachment is delivered to an officer, no lien on the defendant's property is thereby created, but a levy is necessary ; ^ and the first levy obtains the first right to satisfaction,^ unless, as in some States, all the defendant's creditors are allowed to come in and share equally the avails of the first attachment. Hence the necessity that the officer should proceed at once with the execution of the writ. And, as unnecessary delay in completing the attachment might open the way for other officers, having other writs, to seize the property, the first attaching officer should continue the execution of the process, with as little inter- mission as possible, until his duty is completed. § 255 a. What will constitute a levy as against the defendant, is a different question from what will constitute one as against third persons. A levy may be good as against the former, that would not be as against the latter. But this distinction is not based upon any difference in the legal requisites of a levy, but on the fact that the conduct of the defendant, either by positive or negative acts, may amount to a waiver, or an estoppel, or ao-reement that that shall be a levy which, without such conduct, would not be sufficient." In either case, however, the general principle may be laid down, that the acts of the officer, as to asserting his rights, and devesting the possession of the defend- ant, should be of such character as would subject him to an action as a trespasser, but for the protection of the process.* § 256. An officer, in attaching personalty, must actually reduce it to possession, so far as, under the circumstances, can be done ;^ 1 Ante, § 221. Rood, 12 Vermont, 233; Taintor v. Wil- 2 Ante, § 231 ; Crowninsliield r. Stro- lianis, 7 Conn. 271 ; Hollister v. Goodale, bel, 2 Brevard, 80 ; Robertson r. Forrest, 8 Ibid. 332; Odiorne v. Colley 2 New Ibid. 466 ; Bethune v. Gibson, Ibid. 501 ; Hamp. 66 ; Huntington v. Blaisdcll, Ibid. Crocker v. RadclifEe, 3 Ibid. 23. 317 ; Dunklee v. Fales, 5 Ibid. 527 ; Bry- 3 Ta2ts V. Manlove, 14 California, 47. ant v. Osgood, 52 Ibid. 182; Chadbourne * Beekman v. Lansing, 3 Wendell, 446 ; v. Sumner, 16 Ibid. 129 ; Blake v. Hatch, Westervelt v. Pinkney, 14 Ibid. 123; 25 Vermont, 555 ; Gale r. AVard, 14 Mass. Camp V. Chamberlain, 5 Denio, 198; 852; Stockton r. Downey, 6 Louisiana Goode V. Longmire, 35 Alabama, 668; Annual, 581; Woodworth v. Lemraer- Abrams v. Johnson, 65 Il)id. 465; Mc- man, 9 Ibid. 524; Learned v. Vanden- Burnie r. Overstreet, 8 B. Monroe, 300; burgh, 7 Howard Pract. 379; Gates v. Allen V. McCalla, 25 Iowa, 464. Flint, 39 Mississippi. .365 ; Smith i: Orser, 5 Lane ;•. Jackson, 5 Mass. 157; Ash- 43 Barbour, 187; Culver v. Rumsey, 6 mun V. Williams, 8 Pick. 402; Lyon v. Bradwell, 598. [239] § 256 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. though in doing so, it is not necessary that any notoriety should be given to the act, in order to make it effectual.^ What is an actual possession, sufficient to constitute an attachment, must depend upon the nature and position of the property. In gen- eral, it may be said, that it should be such a custody as will enable the officer to retain and assert his power and control over the property, so that it cannot probably be withdrawn, or taken by another, without his knowing it.^ In Connecticut, the doctrine is, that, to effect a valid attach- ment of goods, the officer must have the actual possession of them, as contradistinguished from a constructive possession. The facts of the case were these : A., having an attachment against B., went to levy it on a barouche in B.'s carriage-house, and ob- tained, for that purpose, the key of the house. C, having also an attachment against B., went near the house, and concealed himself. When A. opened the door, he declared that he attached all the carriage and liarness in the house ; but before he actually touched the carriage, C. sprang in and seized it. The court sus- tained the attachment made by C, on the following grounds : " The only object of attachment is to take out of the defendant's possession, and to transfer into the custody of the law, acting through its legal officer, the goods attached, that they may, if necessary, be seized in execution, and be disposed of and deliv- ered to the purchaser. Hence, the legal doctrine is firmly estab- lished, that to constitute an attachment of goods the officer must have the actual possession and custody/. That the plaintiff was at the door of the carriage-house, with a writ of attachment in his hand, only proves an intention to attach. To this, no accession is made by the lawful possession of the key, and the unlocking of tlie door. Suppose, what does not appear, that the key was delivered to him by the owner of the carriage, that he might attach the property ; tliis would be of no account. He might have the constructive possession, which, on a sale, as be- tween vendor and vendee, would be sufficient; but an attachment can only be made by the taking of actual possession. As little importance is attached to the unlocking of the door, and the declaration that the plaintiff attached the carriage. This was not a touching of the property, or the taking of the actual possession. 1 ITemmenway v. AVliceler, 14 Pick. ' Hemmcnway v. Wliceler. 14 Pick. 408; Tomlinson v. Collins, 20 Conn. 364. 408. [240] CHAP. X.] ATTACmiENT OF PERSONAL PROPERTY. § 256 The removal of an obstacle from the way of attaching, as the opening of the door, is not an attachment, nor was the verbal declaration. An attachment is an act done ; and not a mere oral annunciation. From these various acts, taken separately or con- jointly, the plaintiff did not obtain the possession and custody of the carriage, and therefore he did not attach the property." ^ The views expressed in this case, it is believed, are not sus- tained in any other State ; but, on the contrary, the decisions seem to be with unanimity the other way. It has been repeatedly held, that personal property may be attached without the officer touching it. In Maine, to constitute an attachment, it is not necessary that the officer should handle the goods attached, but he must be in view of them, with the power of controlling and taking them into his possession. Therefore, where it appeared that the officer went upon premises of the defendant with an attachment, and before leaving, declared to a person who was accustomed to work there, that he had attached the property there, and requested the person to forbid any one taking the things away, but did not give the property into the custody of that person, and then left, and did not return to take the property into his possession ; the court held, that the attachment might be sufficient, if followed by the continual presence of the officer, or of some one on his behalf.^ In New Hampshire, a valid attachment is not effected, unless the articles are taken into the officer's actual custody, or are placed under his exclusive control ; by which actual custody and exclusive control is not meant that he must touch and remove every article before an attachment can be deemed valid, but that the articles must be so within his power as to enable him to touch or remove them.^ In a subsequent case in the same State, where an officer was in a house levying an attachment on furniture, and another officer entered a chamber of the house not yet reached by the first, and attached the articles therein, the court held the proceedings of the first officer to amount to an attachment of the whole effects, and that the second officer's attachment was illegal ; and they say : " The whole articles must doubtless be within the power of the officer. That is, they must not be in- 1 Hollister v. Goodale, 8 Conn. 332. 2 Nichols v. Patten, 18 Maine, 231. See Adier v. Roth, 2 McCrary, 445; 5 ^ Qdiorne i\ Colley, 2 New Hamp. 66; Federal Reporter, 895. ' Morse v. Hurd, 17 Ibid. 246. 16 [241] § 256 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. accessible to him by tlieir distance, or by being locked up from his reach in an apartment not under his control ; or by being so covered with other articles, or so in the custody of another per- son, that the officer cannot see and touch them." ^ Again, the same court held, that, to make an attachment, the officer must take possession of the goods ; but that it is not necessary that the goods should be removed ; but they must, in all cases, be put out of the control of the debtor.^ In Vermont, it is unnecessary that the officer should actually touch the property, but he must have the custody or control of it, in such a way as either to exclude all others from taking it, or, at least, to give timely and unequivocal notice of his own custody .3 Therefore, where an officer attaching goods in a build- ing, fastened the windows, locked the door, and took the key into his possession, it was held a sufficient taking possession of the goods, as respects subsequent attachments, even though he carelessl}' failed to secure every avenue to the room, and through one unguarded avenue another officer entered and seized the propert}-.^ In Massachusetts, the necessity for an actual handling of the propert}'^ in order to effect an attachment is not recognized. Thus, where the officer went with a writ and took possession of the defendant's store, and locked it up ; it was held to be a suffi- cient attachment of the goods in the store, and valid against a subsequent attachment or mortgage thereof.^ In Illinois, the rule is that in order to a valid levy of a writ of attachment upon personal property, the property must be within the view of the officer, and subject to his immediate disposition and control.^ In Tennessee, it was decided that, to constitute a valid \evy, it is necessary that the officer should take the property into his pos- session ; not that he should have it in actual manual possession, but present and under his control. Therefore, where the officer met the defendant on the farm of the latter, in the road, fifty 1 Huntincitonr. ni;usclc'n,2 New Harnp. * Newton v. Adams, 4 Vermont, 437 ; 317; Cooper v. Newman, 45 Ibid. 339. Shite v. Barker, 2(! Ibid. 047. - Dunklee v. Fales, 5 New Ilamp. 627. ^ Denny r. Warren, 10 Mass. 420; Gor- 3 Lyon V. Rood, 12 Vermont, 233. In don v. Jenney, Ibid. 405; Sliephard i-. this case tlie above-cited case of IloUister Butterfield, 4 Cusliing, 425 ; Naylor v V. Gooilale, 8 Conn. 332, is severely con- Dennie, 8 Pick. 11)8. demned. * Culver v. Rumsey, 6 Bradwell, 698. [242] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 256 yards from the house, and had a list of the defendant's property then on the farm and in the house, and from this list made an endorsement of a levy upon the writ, the property not being then in the presence or sight of the officer ; it was held that this was no valid levy of the writ.^ In Delaware, this case arose. A constable, having executions which came to his hands at 3 o'clock, p.m., levied them upon per- sonal property of the defendant before 5, p.m. On the same day, between 3 and 4, p.m., three writs of attachment came to his hands against the same party, under which he then made in- ventories of the personalty. Afterwards, at 6.30, p.m., of the same day, other writs of attachment, in favor of other creditors, against the same defendant, came to the constable's hands, on which no inventories were made until after 7.30, P.M. It was admitted that the constable did not take any of the personalty of the defendant under or by virtue of any of the writs of attach- ment which came to his hands, unless the making of the inven- tories under those writs amounted in law to a taking of the same, and that he never had the property, or any part of it, in his actual possession under any of the writs of attachment. On the same day, several writs of execution against the same defendant came to the hands of the sheriff, the first at 6, P.M., and the others at 7.30, p.m. The attachment plaintiffs afterwards obtained judgments against the defendant, and under executions issued thereon the constable sold the attached property, and after satis- fying the executions under which it was originally seized, had in his hands a surplus arising from the sale ; and the question was, whether this surplus was applicable to the attachments levied by the constable, or to the executions in the hands of the sheriff; and this involved the question, whether the attachments had been legally levied at all. The court held, that an attachment is a lien only from the taking of the property by the officer ; but that an actual taking into his exclusive possession was not necessary ; and that the making of an inventory of the goods by the officer under the attachment, ivith a vieio to the appraise- ment of them, as required hy latv, constituted a taking of them in contemplation of law, and from that time the goods were in the legal custody and possession of the constable under the attachments.^ 1 C'onnell v. Scott, 5 Baxter, 595. ^ Stockley r. "Wadman, 1 Houston, 350. [243] § 257 ATTACHMENT OF PERSONAL PEOPERTY. [CHAP. X. But in California, where a sheriff went, a few minutes after midnight, to a closed store, and, without obtaining admittance, stationed himself at the front door, and an assistant at the back door, so that no one could go in or come out, but did not declare that he levied on the contents of the store, and did not know what the contents were ; it was held, that no levy was effected, as against an assignment by the defendant in insolvency, made after those acts of the sheriff, and before he obtained an entrance into the store. The court said : " It is too plain for argument that there can be no levy where the officer does not even know the subject of the levy. As well might a sheriff stand in the street and levy on the contents of a banking house, as to stand in a store-door at midnight, and claim that by merely standing- there, and preventing au}^ person from coming into the store, he had levied on the contents, whatever they were, of the store ; and this without having any knowledge of the general nature of the stock, much less of its particular description or value." ^ In Alabama, it is held, that to constitute a levy on personal property, the officer must assume dominion over it ; and must not only have a view of it, but must assert his title to it by such acts as would render him chargeable as a trespasser, but for the protection of the process. Therefore, where, in a proceeding against an officer for not levying an attachment, he claimed that he had levied it ; and it appeared that all he did was to go to the defendant's house, where the property was, and tell a person, whom he then appointed bailee of the property, that he had levied an att;^chment on it, and gave the bailee all the right and power over it which he had by virtue of the levy ; and he then returned the attachment as levied ; and thereafter the bailee never took any possession of the property, nor gave any receipt or bond for it, but it was left where it had been found ; it was decided that tlie officer had not in fact made a levy, so as to fasten a lien on the i:)roperty.2 § 257. In all such cases, however, if the officer have not the property under his control, or, so having, he abandon it, the attachment is lost. Therefore, where an officer having an attach- ment, got into a wagon in which the defendant was riding, and to which a horse was harnessed, and told the defendant that he 1 Taffts V. Manlove, 14 California, 47. ^ Abrams v. Jolinson, Go Alabama, 465. [244] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 258 attached the horse, and then rode down street with the defendant, without exercising any other act of possession, and left the horse with the defendant, upon his promising to get a receiptor for it ; the court held, that as the horse had not been under the officer's control for a moment, or if it could be considered that he had had an instantaneous possession, it was as instantaneously aban- doned, there was no attachment.^ § 258. "With regard to heavy and unmanageable articles, there seems to be no necessity for an actual handling to constitute an attachment. Thus, an officer went with an attachment, within view of a quantity of hay in a barn, and declared, in the presence of witnesses, that he attached the hay, and posted up a notifica- tion to that effect on the barn-door ; and it was held to be a valid attachment as against an officer who had returned a prior attach- ment of the hay, not evidenced by any act of possession.''^ So, where an officer attached a parcel of hewn stones, lying scattered on the ground, by going among and upon them, and declaring that he attached them ; and placed them in charge of the plain- tiff, but made no removal of them, nor gave any notice to any third persons of the attachment, nor took any other mode of giving notoriety to the act ; it was held to be a valid attachment, because it was manifest that the officer did not intend to abandon the attachment, and that the measures he took, considering the bulky nature and the situation of the property, w^ere sufficient.^ So, where an officer attached a quantity of iron ore lying on the surface of the ground, by informing the clerk and workmen of the defendant of the attachment, but did not remove the ore ; and in consequence of his declaration the workmen were dis- missed, and the defendant's operations ceased, and the facts became generally known and talked of; and it appeared that the removal of the ore would have been attended with great expense and serious injury to the property ; it was held, that the attach- ment was valid; that where the removal of attached property would result in great waste and expense, it may be dispensed with ; and that in such case the continued presence of the officer 1 French v. Stanley, 21 Maine, 512. ^ Hemmenway v. Wheeler, 14 Pick. See Libby v. Murray, 51 Wisconsin, 371. 408 ; PoUey v. Lenox Iron Works, 4 2 Merrill v. Sawyer, 8 Pick. 397. Allen, 329 ; Lewis v. Orpheus, 3 Ware, 143. [245] § 258 a ATTACHMENT OF PERSONAL PEOPERTY. [CHAP. X. with the property, in person or by agent, is not necessary ; it being sufficient if he exercise clue vigilance to prevent its going out of his control. 1 The doctrine thus stated, as dispensing with the actual reduction to possession of ponderous articles, was sought, but unsuccessfully, to be applied to an attachment of ripe corn and potatoes in a field, of which an officer returned an attach- ment, though he had only gone into the field, and appointed an agent to keep the corn and potatoes. It was held, that this was no attachment, and that it was the officer's duty to have severed the produce from the soil, and reduced it to his possession.^ § 258 a. In some states legislation has provided for notice of the attachment of ponderous articles, so as to dispense with the necessity of their actual custody by the officer, in order to the preservation of the lien of his attachment. In New Hampshire, for instance, a statute authorizes an officer attaching such prop- erty to " leave an attested copy of the writ, and of his return of such attacliraent thereon, as in the attachment of real estate [that is, by leaving the same at the office of the town clerk]; and in such case the attachment shall not be dissolved or defeated by any neglect of the officer to retain actual possession of the prop- erty." But to be entitled to the protection of this provision, the officer must make such return as will indicate specifically the property he has attached, so as to impart notice to other officers and attaching creditors ; in default of which the leaving of the copy of the writ and return with the town clerk will be of no avail. Thus, where an officer went into a barn in which was a quantity of hay, which he saw, and put up a paper in the barn with the following notice upon it: "I have attached all the hay in this barn in which S. has any interest ; " and then made the following return upon the writ ; " I attached all the wood, hay, bark, and lumber, lands and tenements, in the town of W., in which the within named defendant has any right, title, interest, or estate ; and on the same day I left at the office of the town clerk of said town a true and attested copy of this writ and of my return indorsed thereon ; " it was held, that the return was too indefinite to constitute an attachment as against a subsequent 1 Mills V. Camp, 14 Conn. 219; Pond 2 Heard v. Fairbanks, 5 Metcalf, 111. V. Skidmore, 40 Ibid. 213 ; Bicknell v. Trickey, 34 Maine, 273. [246] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. 259 purchaser of the hay. " By the statute," said the court, '' a public record of the return of the property attached is made a substitute for the retention of possession by the officer or his agent, and its purposes would not be subserved, nor its spirit maintained, by any such effort at compliance with the terms of the statute, or by any such construction of its provisions, as should fail to furnish a subsequent attaching creditor, or a purchaser of the property from the debtor, substantially and practically the same informa- tion as would be derived from knowledge of the officer's reten- tion of possession at common law." ^ § 259. The rule requiring the officer to reduce to his posses- sion personal property attached by him, does not extend to a case in which an attachment is authorized of that which in its nature is incapable of being taken into possession. Such is the case of stock in a bank or other corporation. There, it is suffi- cient for the officer to take the steps required by the law under which he acts, and to describe the property as so many shares of the particular stock owned by the defendant; and a sale by such a description will carry the title.^ In Iowa, the statute declares that " stock in a company is at- tached by notifying the president or other head of the company, or the secretary, cashier, or other managing agent thereof, of the fact that the stock has been so attached ; " and under that statute a sheriff's return of an attachment was held not to be a lien on stock of the defendant, where he returned that he " attached B., secretary of the company, as garnishee, by informing him that he was attached as garnishee, and by leaving with him a written notice ; " which notice notified him " not to pay any debt due by him to the defendant or hereafter to become due," and that he " must retain possession of all property of the said defendant then or thereafter being in his possession or under his control." ^ 1 Bryant v. Osgood, 52 New Harap. ^ Stamford Bank v. Ferris, 17 Conn. 182. 259. 8 Mooar v. Walker, 46 Iowa, 164. [247] § 260 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. CHAPTER XI. SIMULTANEOUS, SUCCESSIVE, CONFLICTING, AND FRAUDULENT ATTACHMENTS. § 260. A COMMON occurrence in the use of the remedy by attachment is, for a number of writs, in favor of different plain- tiffs, to be placed, at the same time, or in quick succession, in the hands of officers, against the same defendant, and served on the same property, simultaneously, or at short successive inter- vals. As such cases usually occur when the defendant is in fail- ing circumstances, or is about to commit, or has committed, some fraud, and the property levied on is supposed to be the only available resource for the satisfaction of his creditors, it is im- portant to ascertain the rules which are to decide between in- terests which, under such circumstances, are almost certain to come in conflict. This subject is of no importance where, as in some States, the first attachment holds the property, not to the exclusion of all subsequent ones, but for the benefit of all credi- tors of the defendant who come in and prove their demands, and thereby become entitled to share with the first attacher the avails of his diligence ; but where, as in nearly all of the States, the writs hold in the order of their service, its importance is evident. § 2G0 a. An interesting case, illustrative of this subject, oc- curred in California. At 1.40, p.m., an action by attachment was commenced by A. against B., by depositing in the clerk's office of the court a complaint, affidavit, and undertaking, with a request that an attachment should be issued forthwith. There- upon, A.'s attorney, by whom those papers were filed, and the writ demanded, left the clerk's office and was absent forty-five minutes. On his return, the writ which he had demanded had been completed, and was immediately, without delaying him, )»laced in his hands. Meantime, in the attorney's absence, and while the clerk was engaged in preparing A.'s writ, the attorney [248] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 262 of C. came into the office, and placed in the clerk's hands a com- plaint, affidavit, and undertaking, in an action by C. against B., and also demanded an attachment forthwith. He was directed to fill out the blanks, and did so, and thereupon the clerk signed, sealed, and delivered the same to him at three minutes before two o'clock, and at two o'clock the writ was placed by C.'s attor- ney in the hands of the sheriff; so that C.'s attachment was issued and placed in the hands of the sheriff twenty-five minutes before A's attorney returned to the clerk's office ; whereby C. obtained priority of hen upon B.'s effects. A. sued the clerk upon his official bond for damages sustained by his failure to per- form his duty in the matter of issuing the writ against B. The court held, that he could not recover, because, though the clerk was bound to issue writs in the order in which they are de- manded, yet as A.'s attorney was not present to receive his writ when it was completed, the clerk was not bound in the mean time to delay the issuing of other writs against the same de- fendant.^ § 261. In general, there is no doubt that the law admits of no fractions of a day ; but this rule is subject to exceptions, when necessary to determine priority of right. The case of several attachments levied on the same property on the same day, is one of the exceptions. There, it is held, that they will stand accord- ing to the actual time of service, and if a judgment be obtained by a junior attacher in advance of a senior, it will not destroy the priority of lien acquired by the latter.^ § 262. The rights of attaching creditors, who, as against their common debtor, have equal claims to the satisfaction of their debts, must depend on strict law ; and if one, by any want of regularity or legal diligence in his proceedings, loses a priority once acquired, it is a case where no equitable principles can aiford him relief ; where the equities are equal ; and where the right 1 Lick V. Madden, 36 California, 208. into the sheriff's hands on the same day, 2 Post, § 265 ; Tufts v. Carradine, 3 and are executed on that day on the Louisiana Annual, 430 ; Stone v. Abbott, same property, no preference is allowed 3 Baxter, 319 ; Garity v. Gigie, 130 Mass. among them. Yelverton v. Burton, 26 184. In Pennsylvania, however, it is Penn. State, 351. • held, that where several attachments go [249] § 262 SmULTANEOTJS, SUCCESSIVE, CONFLICTING, [CHAP. XI. must be governed by the rule of iaw.i It has therefore been held, in a case where the defendant was not served with process, that a failure by an officer to make return of an, attachment in the manner provided by law, invalidated the attachment as against a subsequent attaching creditor.^ It has also been held, that, as against subsequent attaching creditors, the rendition of a judgment in due form and course of law, and the issuing of an execution on that judgment, and duly charging the property therewith, are as necessary as the attachment itself to entitle the plaintiff to priority of satisfaction ; and that any departure by him from the course prescribed by law for establishing his right to such satisfaction will discharge his lien under the attachment, and subject the whole attached property to the claims of the sub- sequent attachers. Hence it was held in Vermont, that a con- fession of judgment by the defendant, anterior to the time when the action would have been regularly triable,^ or an appearance and trial, resulting in a judgment for the plaintiff, before the return day of the writ,^ was a dissolution of the plaintiff's lien under his attachment, as against subsequent attachments. So, where there were several successive attachments, and the first attacher, having a claim large enough to absorb all the property attached, by agreement with the defendant took all the property in satisfaction of his debt, and discontinued his suit ; it was held, that, as against the subsequent attachers, who perfected their lien by judgment and execution, he acquired no title to the property.^ It will be remaiked, that, in all these instances, there was held to be a substantial departure from the legal mode prescribed for enabling a party to obtain the benefit of his attachment. This is a different matter from mere irregularities ; for it is well set- tled tliat, though such exist in the proceedings of one attaching creditor, other attaching creditors cannot make themselves par- ties to the proceedings for the purpose of defeating them on that account.*^ 1 Suydam v. Iluggeford, 23 Pick. 4G5. c Kincaid v. Neall, 3 McCord, 201 ; See Southern Bank /•. McDonald, 4(5 Mis- Cainherford v. Hall, Ibid. 345 ; McBride Bouri, 31 ; Alley v. Myers, 2 Tennessee v. Floyd, 2 Bailey, 20',) ; Van Arsdale v. Ch'y, 206. Krum, 9 Missouri, 3'.i7 ; Walker v. Kob- 2 Stone V. IMillcr, G2 Barbour, 430. erts, 4 Piehardson, 561 ; Ball v. Claflin, 8 Hall V. Walbridf,'e, 2 Aikens, 215. 5 Pick. 308; In re Griswold, 13 Barbour, * Murray r. Eldridge, 2 Vermont, 388. 412 ; Bank of Augusta v. Jaudon, 9 Loui- '' Brandon Iron Co. r. Gleason, 24 Ver- siana Annual, 8; Isliam v. Ketclmm. 46 mout, 228; Cole v. "Wooster, 2 Couu. 203. Barbour, 43; Ward v. Howard, 12 Ohio [250] CHAP. XI.] AOT) FRAUDULENT ATTACHMENTS. § 263 § 263. Neither the issue of an attachment,^ nor its lodgment in the hands of an officer,^ confers any rights upon the phiintiff in the defendant's property. It is only when the writ is served, that, as between plaintiff and defendant, and generally as between different plaintiffs, its lien takes effect.^ Hence, when several attachments against the same person are simultaneously served on the same property, they will be entitled to distribute among them the proceeds of the attached property, or the funds in the hands of garnishees. This distribution is not in propoilion to the amount claimed under each attachment, but according to the number of the writs, each being entitled to an aliquot part ; with this qualification, however, that, if the share of any plaintiff be more than sufficient to satisfy his demand, the surplus must be appropriated to any other of the demands which is not paid in full by its distributive share.^ This rule was applied in Massachusetts, not only to the case of simultaneous attachments by different officers,^ but where the writs were in the hands of the same officer, and were delivered to him at different times, but served together.^ In Kentucky, however, it was determined, that, though in the case of distinct officers, the first levy gives the prior lien, yet where several attachments against the same fund come, in succession, to the hands of the same officer or his deputies, it is the duty of the officer to execute them in the order in which they were received. And although when the process comes to the hands of different deputies, this order of service may, without fault, happen to be reversed, the court, having the fund in its possession under all the attachments, should distribute it according to the rule which should have governed the execution of the process.'^ State, 158; Seibert v. Switzer, 35 Ibid. Hamp. 438; Campbell i-. Ruger, 1 Cowen, G61 ; Rudolf v. McDonald, Nebraska, 215 ; Nutter v. Connett, 3 B. ^Monroe, IGo ; Fridenburg v. Pierson, 18 Call- 199. This rule, however, does not obtain fornia, 152; Jacobs v. Hogan, 22 New in Pennsylvania, North Carolina, and Ten- York Supreme Ct. 197. nessee, where the distribution is made 1 Ante, § 221. pro rata. Yelverton u. Burton, 2G Penn. 2 Ante, § 221. State, 351 ; Hill v. Child, 3 Devereux, 3 Ante, § 221. 2G5 ; Freeman v. Grist, 1 Devereux & * Shove V. Dow, 13 Mass. 529; Sig- Battle, 217; Porter v. Earthman, 4 ourney i-. Eaton, 14 Pick. 414 ; Rock- Yerger, 358 ; Love v. Harper, 4 Hum- wood V. Varnuni, 17 Ibid. 289; Durant phreys, 113. V. Johnson, 19.1bid. -544; True v. Emery, ^ Shove i--. Dow, 1.3 Mass. 529. 67 Maine, 28; Wilson v. Blake, 53 Ver- c Rockwood v. Varnum, 17 Pick. 280. mont, 305; Davis v. Davis, 2 Cushing, "^ Kennbn r. Ficklin, 6 B. Monroe, 414 ; 111 ; Thurston r. Huntington, 17 New Clay v. Scott, 7 Ibid. 554. See Callahan [251] § 265 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. § 263 a. In cases of this description, it is not the legal right of the officer who made the attachments to decide the distribution of the fund between the executions in the attachment suits. If he assume to do so, it is at his own peril. His proper course is to refer the matter to the court out of which the executions issue. In such a case, where the officer paid one execution in full, thereby preventing tlie satisfaction of the other, and it appeared that the judgment which was satisfied was invalid, the officer was charged with the unsatisfied part of the other.^ § 26-1. Where different writs are in the hands of the same offi- cer, there need be no difficulty in ascertaining whether their ser- vice was simultaneous; but when different officers are employed, each intent on obtaining priority, questions of difficulty may occur. A singular case of this description is reported in Massachusetts, where two officers held attachments against the same defendant. One returned his writ served " at one minute past 12 o'clock A. M.," the other that he served his writ "imme- diately after midnight " on the same day. The court held, that each of them made the attachment as soon as it could be done after twelve o'clock at night, and that it was impossible to say that either had the priority .^ § 265. Where several writs against the same defendant are served on the same day, and there is nothing in the officer's return, nor on the face of the proceedings, to show a priority in the time of service, it may be presumed that they were served at the same time ; ^ and where, in a case of that description, the returns on all the writs, except one, stated the time of the day when the service was made, and that one stated only a service on that day ; it was held, that it was neither matter of legal pre- sumption, nor construction, that the latter writ was served at the same time with any of the others. But parol evidence was admitted to show at what time of the day specified in tlie return the service was in fact made ; such evidence being regarded as entirely consistent with the return.^ In a similar case, where an officer returned an attachment as made at 12 o'clock, noon, on a 1-. Hallowell, 2 Bay, 8; Thurston v. Hunt- » Ginsberg v. Pohl, 35 Maryland, 505. ington, 17 New Ilanip. 408. * Brainanl v. Buslinell, 11 Conn. 16; 1 Howard r. Clark. 4.) Missouri, 044. Garity v. Gigie, 130 Mass. 184. 2 Shove I'. Dow, 13 Mass. 520. [252] CHAP. XI.] AND FRAUDTJI.ENT ATTACHMENTS. § 267 certain day, it was considered prior in point of time to another attachment returned as made on the same day, indefinitely, with- out specifying any particular hour. And it was held in that case, that no amendment of the latter return was admissible, which would destroy or lessen the rights of third persons previously acquired. 1 § 265 a. Where several writs were executed about the same time, and so near together that, but for the terms of the returns thereon, they would be considered as having been simultaneously made, it was held, in New Hampshire, that the officer might indi- cate the order in which he served them, by returning his attach- ment under one as subject to an attachment under another ; and that if he so return them in the order in which he received them, he gives them their rightful precedence.^ § 266. When different officers make attachments so nearly at the same time that it is difficult to determine the question of pri- ority between them, they may, it seems, settle the dispute by a division of the property, which will be regarded as binding on them, and as precluding either from subsequently raising the question of priority. And if, in such case, one sell the whole of the property, and apply the proceeds to the satisfaction of the execution held by him, the other will be entitled to maintain trover against him for his portion, and in order thereto, need not prove that, in fact, his was the first attachment.^ § 267. Neither the actual custody nor the exclusive control of the same articles of personal property can, at the same time, be in two distinct persons ; and therefore, as possession of goods by an officer is an indispensable requisite to a valid attachment of them, it follows that when an officer has levied an attachment on goods, and has them in his custody, .no other officer can seize them under another writ ; for in order to attach, he must lawfully take possession of them ; but this he cannot do, since the first at- taching officer has, by his prior attachment, a special propert}'' in them, and they are in the custody of the law, and it would intro- 1 Fairfield v. Paine, 23 Maine, 498; ^ Thurston v. Huntington, 17 New Taylor v. Emery, 16 New Hamp. 359. Hamp. 488. See Bissell v. Nooney, 33 Conn. 4li. ^ Lyman ;;. Dow, 25 Vermont, 405. [253] § 268 a SIMULTANEOUS, SUCCESSIVE, CONELICTING, [CHAP. XI. diice confusion to admit of several officers contending for the j)os- session of attached goods.^ And it matters not that the first attaching officer had levied upon more than was sufficient to satisfy the writ under which he acted.^ The same rule prevails where the property is not in the actual custody of the first officer, but in the hands of a receiptor, to whom he has intrusted it. The possession of the receiptor, being that of the officer, cannot be violated by taking the goods from his custody under another attachment.^ § 268. If an officer attach property, and it is subsequently taken from his possession by another officer under another at- tachment against the same defendant, and the property is sold and its avails applied by the second officer upon the execution obtained in the second suit, and the first officer sue the second for the trespass, his right to recover any thing more than nominal damages will depend on his liability for the property to the plain- tiff in whose favor he attached it; and if that liability has been lost by the failure of the plaintiff to perfect the lien of his attach- ment, tliere can be no recovery against the second attaching officer for any thing more than nominal damages. In such case the first officer cannot recover upon the ground of any liability on his part to the defendant, since the act of the second officer was justifiable, so far as the defendant is concerned, and the first officer is not hable over to the defendant for the property."* § 268 a. If an officer levy an attachment on propert}' which has already been attached, and for which a delivery bond has 1 Ante, § 251 ; Watson v. Todd, 5 2 Vinton v. Bradford, 13 Mass. 114. Mass. 271 ; Vinton v. Bradford, 13 Ibid. ^ Tliompson v. Marsh, 14 Mass. 269. 114; Burlingame v. Bell, 10 Ibid. 318; In Ilagan ?'. Lucas, 10 Peters, 401), prop- Odiorne v. Collej', 2 New Ilanip. GO ; erty had been levied on under execution Moore ?'. Graves, 3 Ibid. 408; Walker v. by a sheriff in Alabama, and claimed by Foxcroft, 2 Maine, 270 ; Strout r. Brad- a third person not a party to the execu- biiry, 5 Ibid. 313; Burroughs v. Wright, tion, who gave bond to redeliver it to the 16 Vermont, G19 ; West River Bank v. sheriff when the title had been tried ; Gorham, 38 Ibid, Gi9; Lathrop v. Blake, and it was held to be so in the custody of 3 Foster, 4G ; Benson v. Berry, 55 Bar- tlie law, tiiat it could not, while in that bour, 620 ; Oldham v. Scrivener, 3 B. condition, be taken under execution by Monroe, 579; Robinson v. Ensign, 6 the niarslial of a United States court. Gray, 300; Harbison v. McCartney, 1 See Roberts r. Dunn, 71 Illinois, 40. Grant, 172; Beers v. Place, 36 Conn. * Goodrich v. Church, 20 Vermont, 678; Adler v. Roth, 2 McCrary, 445; 6 187. Federal Reporter, 895. [254] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. 270 been given, it is his duty to keep it safely, so that it shall be forthcoming to answer the first levy. The neglect of tliis duty is nonfeasance ; and the delivery of the goods to the second attach- ing creditor, whereby they cannot be reached to satisfy the first levy, is misfeasance ; and the officer becomes liable to the first at- tache! for the goods.i § 268 h. In order to charge an officer with liability for levying an attachment on property previously levied on by another officer, and found in the possession of the sureties in a delivery bond given therefor, notice must be given to him of the prior attach- ment ; and notice to his deputy, whom he authorized to make the levy, at the time he makes the levy, is held to be notice to him.^ § 269. If it be desired to attach property already attached, and in an officer's custody, the writ should be delivered to, and ex- ecuted by, him ; when it will be available to hold the surplus, after satisfying the previous attachment, or the whole if that at- tachment should be dissolved. In such case no overt act on the part of the officer is necessary to effect the second levy, but a re- turn of it on the writ will be sufficient.^ So, where the property is in the hands of a bailee, the officer who placed it there may make another attachment, without the necessity of an actual seizure, by making return thereof, and giving notice to the bailee.* And in Louisiana, where attached property was sold by order of court as perishable, and bonds for the price thereof were taken by the sheriff from the purchasers, it was held that the bonds might be levied upon by the same officer, under an execu- tion in favor of another creditor, subject to the attachment under which the sale was made ; the law of that State authorizing a levy on bonds.^ § 270. These rules refer to seizures of goods, and not to cases where property is attached by one officer, by garnishment of the 1 Scarborough v. Malone, G7 Alabama, * Knap v. Spragne, 9 Mass. 258 ; 570. Whittier v. Smith, 11 Ibid. 211 ; Odiorne 2 Scarborough v. Malone, G7 Alabama, r. CoUey, 2 New Hamp. 06 ; Whitney v. 570. Farwelf, 10 Ibid. 9; Tomlinson v. Col- 3 Turner v. Austin, IG Mass. 181 Tomlinson v. Collins, 20 Conn. 364 Rogers V. Fairfield, 36 Vermont, 641 Perry v. Sliarpe, 8 Federal Reporter, 15. lins, 20 Conn. 364. 5 Hoy V. Eaton, 26 Louisiana Annual, 169. [25.5] § 272 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. individual in whose possession it may be, and afterwards by another officer, by actual seizure and removal thereof from the garnishee's possession. This, though a proceeding not by any means to be approved, and where the writs issue from different jurisdictions, wholly inadmissible, yet may, it seems, be done, wdiere the two writs proceed from the same jurisdiction. The officer making the seizure of the goods, will hold them subject to the prior lien of the garnishment. He must keep them until the result of the garnishment is ascertained ; when, if the garnishee be charged in respect of them, the officer will be bound to restore them to him and suffer them to be sold ; and if he fail to do so he will be liable to the garnishee,^ or to the plaintiff in the gar- nishment.2 § 271. If an officer suffer his possession of attached property to be lost, it may be attached by another officer, though the latter may be aware of the former attachment having been made, if his knowledge extend not beyond that fact.^ For it does not follow, that, because he knows an attachment was at one time made, he knows that it still exists ; on the contrary, he may well infer, from finding the property no longer in the possession of the officer who first attached it, that the prior attachment had been discharged. But if he know that there is a subsisting attach- ment, — although the defendant might, at the time, by the per- mission of the bailee, to whom the property had been intrusted, be in possession of it, — he cannot acquire a lien by attaching it.* After he has made a levy, however, notice ta him that a prior attachment exists will not affect the validity of the levy.^ § 272. The existence of the proceeding by attachment could hardly fail to give rise to fraudulent attempts to obtain prefer- ence, where the property of a debtor is insufficient to satisfy all the attachments issued against him. When it transpires that there are circumstances justifying resort to tliis remedy, the creditors of an individual usually press forward eagerly in the race for precedence, sometimes to the neglect of important forms 1 Burlinsame v. Bell, 16 Mass. 318; * Bagley r. White, 4 Pick. 395 ; Young Swett V. Brown, 5 Pick. 178. v. Walker, 12 New liamp. 502; Morse v. 2 Rockwood V. Varnnm, 17 Pick. 289. Smith, 47 Ibid. 474. 3 Chadbourne v. Sumner, IG New ^ Bruce v. Holden, 21 Pick. 187. Hamp. 120. [256] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 274 in tlieii- proceedings, and sometimes without due regard to tlie rio-hts of others. On such occasions, too, notwithstanding the safeguards generally thrown around the use of this process, and in violation of the sanctity of the preliminary oath, it has been found that men in collusion with the debtor, or counting on his absence for impunity, have attempted wrongfully to defeat the claims of honest creditors, by obtaining priority of attachment, on false demands. There is, therefore, a necessity — apparent to the most superficial observation — for some means by which all such attempts to overreach and defraud, through the instru- mentality of legal process, may be summarily met and defeated. Hence provision lias been made in the statutes of some States for this exigency ; but where such is not the case the courts have broken the fetters of artificial forms and rules, and attacked the evil with commendable spirit and effect. § 273. As before remarked,^ whatever irregularities may exist in the proceedings of an attaching creditor, it is a well-settled rule that other attaching creditors cannot make themselves par- ties to those proceedings, for the purpose of defeating them on that account.^ Nor can a subsequent!}^ attaching creditor take advantage of any waiver made by the attachment defendant, which causes no substantial injustice to such creditor.^ But where an attachment is based on a fraudulent demand, or one which has in fact no existence, it is otherwise ; as will appear from a review of the action of courts of a high order of learning and ability. § 274. In North Carolina, it was held, in the case of several attachments against the same defendant, levied on the same prop- erty, tliat a junior attacher could not impeach a judgment obtained by a senior attacher, on the ground that when the attachment of the latter was obtained, the defendant's debt to him was not due ; * ^ Ante, %2G2. Annual, 8; Fridenburg v. Pierson, 18 2 Kincaid v. Neall, 3 McCorrl, 201 ; California, 152 ; Ward v. Howard, 12 Camberford r. Hall, Ibid. .345; McBride Oliio State, 158; Rudolf v. McDonald, V. Floyd, 2 Bailey, 209 ; Van Arsdale v. 6 Nebraska, 163. Krum' 9 Missouri, ,397 ; Walker v. Rob- « Rudolf v. McDonald, 6 Nebraska, 163. erts, 4 Richardson, 5G1 ; Ball r. Ciaflin, * Harrison v. Pender, Busbee, 78 ; 5 Pick. 30!: In re Griswold, 13 Barbour, Bank of Fayetteville v. Spurling, 7 Jones, 412; Isham v. Ketchum, 46 Ibid. 43; 398. Bank of Augusta v. Jaudon, 9 Louisiana 17 [257] § 275 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. and in Iowa, that a junior attacher could not intervene in a prior attachment suit, to show that it was prosecuted by collusion be- tween the parties thereto, for the purpose of hindering, delaying, and defrauding the defendant's creditors ; but that relief in such case could only be administered by a court of equity.^ But these decisions are inconsistent with the general current of de- cision elsewhere, as we shall now proceed to show. § 275. In New Hampshire, so far as we have been enabled to discover, there is no statute authorizing an attaching creditor to impeach the good faith of previous attachments ; but a practice prevails there, which effectually opens the door for such salutary investigations ; as is exhibited by the following case. One sued out an attachment, and caused it to be levied. Afterwards cred- itors of the same defendant, who had subsequently caused the same property to be attached, suggested to the court, that the suit of the prior attacher was prosecuted collusively between him and the defendant, for the purpose of defrauding the creditors of the latter, and that there was, in fact, nothing due from the de- fendant to the plaintiff. Thereupon, — the creditors making the suggestion, having given security to the plaintiff to pay all such costs as the court should award on account of their interference in the suit, — the court ordered that the plaintiff should make his election to dissolve his attachment, or consent to trj^ in an issue between him and the creditors, the question whether his suit and attachment were collusive. The plaintiff elected the latter, and an issue was formed for the purpose, between the plaintiff and the creditors, and tried by a jury, who found that the suit was prosecuted collusively, for the purpose of defrauding creditors. The court then ordered all further proceedings to be stayed; from which order the plaintiff appealed to the Superior Court. That court, in sustaining the appeal, differed from the court below only as to the manner of arriving at the result ; and held, that if the creditors should give security to pay all the costs which the plaintiff might recover, they would be permitted to defend in the name of the defendant?' Afterwards the same court referred to this as a very common practice, and as in general the only mode in which a fraudulent attachment could be defeated ; ^ 1 Whipple V. Cass, 8 Iowa, 12G. ^ Webster r. Harper, 7 Now Hamp. 2 Buckman v. Buckman, 4 New Ilarap. 594 ; Pike v. Pike, 4 Foster, 384. 319. [258] CHAP. XI.] AXD FRAUDULENT ATTACHilENTS. § 275 and in a snbsequent case held it to be available, as well in cases of garnishment, as in those of levy on specific property.^ It was also held by that court, that a subsequent attacher might move to dismiss a prior attachment, on the ground that there was no such person as the plaintiff therein.^ In South Carolina, by the proceeding in attachment, the funds of the absent debtor are brought into court, and distributed among the several attaching creditors ; and a judgment in at- tachment serves no other purpose than to ascertain the amount of the plaintiff's claim on the attached property, b}^ establishing his demand against the absent debtor ; and no execution, can be issued on the judgment. "When the attached fund is distributed the judgment is functus officio^ unless the defendant shall have entered special bail, or, under the act of 1843, executed a war- rant of attorney and been admitted to defend the action, on the conditions prescribed by the act.^ There it is settled, that in making the distribution of the moneys arising from the attach- ments, the court can and should inquire into the several causes of action, and may inspect its judgments to prevent fraud and injus- tice. In effecting this, the consent or opposition of the parties to the judgment is disregarded, for they may combine to effect the fraud. The acquiescence of the defendant in the plaintiff's illegal proceedings affords no protection against an inquiry into the judgment, when that is necessary for the protection of the rights of other creditors. Therefore, where an attachment appears to have issued on a debt not due, it will be set aside in favor of a junior attachment upon a debt due.* And the same position was sustained in California,'^ jNIississippi,^ and Indiana.' 1 Blaisdell v. Ladd, 14 New Harap. braced, besides a debt actually due, an 129. See Harding v. Harding, 25 Ver- amount intended to cover and secure a mont, 487, for the practice in such cases, liability which the plaintiff was under as as regulated by statute in Vermont. an indorser for the accommodation of the 2 Kimball y. Wellington, 20 Xew Hamp. defendant, decided tliat, in the absence of 439. fraud, such a combination of claims did 8 Walker r. Roberts, 4 Richardson, not make the attachment void, and tluit 561. the attachment should be sustained as to 4 Walker v. Roberts, 4 Richardson, the debt really due, but not as to the rest. 561; Ralph v. Nolan, 1 Rice's Digest of Ayres v. Husted, 15 Conn. 504. S. C. Reports, 77. The Supreme Court ^ Patrick v. Montader, lo California, of Connecticut, however, in a case which 4.34 ; Davis v. Eppinger, 18 Ibid. .378. came before it between conflicting attach- ^ Henderson v. Thornton, 37 Missis- ing creditors, where the claim of one was sippi, 448. resisted by the others, because it em- " United States Express Co. v. Lucas, [259] § 275 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XL The Court of Ai")peals ofVirginia have taken the same salutary course, aud held that a junior attaching creditor may come in and defend against a senior attachment, b}- showing that the debt for which the senior attachment was taken out had been paid.^ In Georgia, this subject received a full examination, and it was held, upon general principles, and without any aid from statutory provisions, that a judgment in an attachment suit may be set aside, in a court of law, upon an issue suggesting fraud and want of consideration in it, tendered by a junior attaching creditor of the common defendant.^ In New York, the following case is reported. A. issued an attachment, and caused it to be levied on property of B., owned by him and a partner, not a defendant in that action, constituting the firm of B. & Co. Thereupon B. requested D., a creditor of the firm, to accept a confession of judgment from himself and copai'tner, and levy on the attached property, thus gaining a prior right over A. This judgment was set aside by the court, as being intended to defraud creditors. Thereupon D. issued an attachment on the partnership debt, and levied it on the property alread}' attached ; having done which, he took no further step in the action for more than four months ; thus leaving his attach- ment dormant, and apparently to be used only against other creditors. After the levy of D.'s attachment, he went on selling goods to B. & Co., and required and obtained security on those sales. Tliese facts, taken in connection with the design of the previous confession of judgment, were held sufficient to justify the inference that D.'s attachment was levied, not to secure the debt due him, but to hinder and delay the collection of A.'s demand, and that D.'s attachment would be dropped if A.'s claim were out of the way ; and the court, acting on this inference, on motion vacated D.'s attachment.^ In New York, also, it was held, that prior to the enactment of the provisions of the Code of Civil Procedure authorizing a subse- quent attachcr to move to set aside a previous attachment, that right existed as to jurisdictional defects in the prior attachment; and that that provision did not confer any new right, but was simply declaratory of existing law.^ 36 Indiana, 301 ; Lytic v. Lj-tle, 37 Ibid. - Smitli j: Gettingor, 3 Goorgin, 140. 281. 3 I^eed v. Ennis, 4 Alihott Tract. 393. 1 McCIuny v. Jackson, 6 Grattan, 96. * Jacobs v. Ilogan, 85 New York, 243. [2G0] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 276 In Michigan, where a plaintiff took judgment for the demand upon which his attachment was obtained, and also for another demand which became due after his suit was instituted; the judgment was held fraudulent as against, and was postponed to the. claim of, a subsequent attaching creditor.^ In Ohio, the right of a subsequent attacher to object to a prior attachment on the ground that the cause of action therein is one for which an attachment is not allowed by law, was recognized ; but the court seemed to consider that this right could not be exercised until the question of the final disposition of the attached fund among the attachers, after all had obtained judgments, should come before the court.^ Afterwards, in an action between different attaching creditors, to determine priorities among them, the attachment which had been first served was set aside as against subsequent attachers, because under the code of that State it was issued before a petition in the action was filed ; when the code required a civil action to be commenced by filing in the clerk's ofiice a petition, and authorized an attachment to issue, " at or after the commencement " thereof.^ These cases, proceeding upon principles of strict right and jus- tice, and fulfilling the law's aversion to every species of collusion and fraud, it is to be hoped will be regarded as authority in all other courts, and lead to the general adoption of a practice which thus summarily assails an evil that cannot be so effectively reached by any other means. § 276. Besides the remedy afforded in the mode pointed out in the preceding section, there is no doubt that an attaching cred- itor, injured by a fraudulent attachment, may maintain an action for the injury, either against the plaintiff therein, or the officer who made it with knowledge of its fraudulent character. Thus, where officer A., on Saturday afternoon, attached goods in a store, and removed part of them to another building, and then closed and locked the store, and took the key away ; and early on Monday morning officer B. called on the defendant with another attachment, and the defendant showed him the goods, and B. thereupon attached them, knowing the existence of Ai's attachment ; and A. sued B., in trover, for the value of the goods ; 1 Hale V. Chandler, 3 Michigan, 531. ^ Seibert v. Switzer, 35 Ohio State, 661. 2 Ward V. Howard, 12 Ohio State, 158. [261] § 278 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. it was held, that B.'s attaching the goods with the defendant's assistance showed collusion to defeat the first attachment, and that fraud was a necessary inference from the facts, and that the action was maintainable.^ Of the same character is the follo^ying case : A. & B., separate creditors of C, sued out attachments against him, and levied them on his property. Afterwards D. obtained an attachment against C, and the officer returned a levy on the same propert}', subject to the attachments of A. & B. At a subsequent time A. & B. were desirous that the property should be sold on their writs, but D. gave written notice to the officer that he should resist the demands upon which the attachments of A, & B. were founded, as being fraudulent, and that he should object to the sale of the goods until judgment should be recovered in due course of law, and the goods be sold on execution, and that if the officer should sell the goods on the writs, it Avould be at his peril. The officer, notwithstanding, sold the property, and when A. & B. obtained judgments, appropriated the proceeds to the satisfaction thereof, leaving nothing to satisfy D.'s claim ; whereupon D. brought an action on the case against the officer for failing to satisfy his execution. On the trial it appeared, that in the action instituted b}'- A. there were two demands, one of which Avas just, the other without any consideration, and fraudu- lent. It was held, that embracing this fraudulent demand in the suit made the whole action void as to D.'s right as an attaching creditor, and that the officer was liable to D.^ § 277. An action on the case for conspiracy also lies in favor of a creditor, against his debtor and a third person, wlio have procured the property of the debtor to be attached in a suit for a fictitious debt, and applied to the payment of the judgment obtained in the action, in order to prevent creditors from obtain- ing payment out of the property ; the creditor having subse- quently attached the same goods, and not being able to procure payment of his debt, in consequence of the prior attachment ; and the debtor being insolvent.^ § 278. In a statutory proceeding in ^Massachusetts, taken by an attaching creditor, to avoid, as fraudulent, a previous attach- 1 Denny >: Warren, 16 Mass. 420. » Adams v. Paige, 7 Pick. 542. 2 rairti.1.1 V. Baldwin, 12 Pick. 388. [262] CHAP. XI.] AND FEAUDULENT ATTACHMENTS. 278 ment, an important question arose, in connection with the admis- sibility in evidence, on behalf of the first attacher, of the declarations of the defendant, made after the suit of the first attacher was brought, that his demand was bond fide and for a valuable consideration. Such declarations were held to be admissible, on the following grounds : " The party thus admitted [to contest the previous attachment] is in fact adversary in the suit to both plaintiff and defendant, for his interposition is bot- tomed upon a supposed confederacy between them to defraud him and other creditors, by a false claim and attachment, upon which the property is to be withdra^^'n from the attachment of lond fide creditors. In this state of the controversy, it would seem that the declarations or confessions of either of the parties against whom the fraud is alleged, ought not to be admitted to repel the charge. And yet it is obvious that a lond fide creditor who has made a just attachment may be injured, if, by reason of the admission of a third party into the suit, he is to be deprived of evidence which he would be entitled to, if no one had inter- posed between him and the debtor. There may be collusion betw^een the debtor and the second attaching creditor to defraud the first, and this kind of fraud is quite as easy to be practised as the other. The debtor may deny the validity of the first cause of action, for the purpose of favoring the second attachment, and the first attaching creditor ought to be allowed the benefit of any acknowledgment made by the debtor, it being often difiicult to furnish direct proof of the consideration of a note or other con- tract. . . . Whatever the admission of the debtor may avail, the plaintiff is entitled to the benefit of. It probably will avail little against any evidence of fraud ; but there seems to be no objec- tion to its being weighed by the jury." ^ And it was afterward held, that such admissions, made after the subsequent attacher was admitted to defend the previous suit, were equally admis- sible in evidence for the first attacher.^ It is different, however, in regard to giving in evidence decla- rations of the first attaching creditor, in a proceeding taken by a subsequent attacher to defeat his attachment. There ihey are considered entirely inadmissible.^ 1 Strong V. Wheeler, 5 Pick. 410. " Carter v. Gregory, 8 Pick. 165. 2 Lambert v. Craig, 12 Pick. 199. [263] § 280 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. § 279. In Massachusetts, the statute authorizing proceedings of this description formerly provided that any subsequent attach- ing creditor of the same property which was attaclied by a prior attacher, might be admitted to defend the first suit, in like man- ner as a party sued could or might have done ; and it was held, that in order to entitle a subsequent attacher to this privilege, it was not necessary that his suit should have been instituted in the same court as the first.^ In a proceeding taken under that stat- ute, the subsequent attacher offered to prove that a portion of the note on Avhich the first suit was founded was not due to the plaintiff ; but it was objected that the subsequent attacher could make no defence which the defendant could not himself make ; and that the defendant could not make such a defence ; but the court considered that position untenable.^ § 280. The difficulties attending the practical operation of the Massachusetts statute, authorizing a subsequent attacher to make any defence to a previous attachment, which the defendant might make, led to the substitution for it of another provision, to the effect that any person claiming title or interest in the at- tached property, might be allowed to dispute the validity and effect of the prior attachment, on the ground that the sum de- manded therein was not justly due, or that it was not payable, when the action was commenced. Under this statute this case arose. A. made out and signed a note to B., without B.'s knowledge, and caused an attachment to be made thereon ; which B. assented to, and ratified afterwards, but not until a second attachment had been made by C. ; who contested the validity of A.'s attachment, on the ground that the note sued on was not a debt due to B. at the time of the attachment. Tlie court sustained this position, because — among other reasons — the note did not constitute an express promise until assented to by B.3 But where a debt was due and payable when an attach- ment was taken out, and the attachment was contested by a sub- sequent attacher, on the ground that it was obtained l)y the order and direction of the defendant, and that the assent of the 1 Lodge V. Lodge, 5 Mason, 407. taclinient was sued out and in part exe- •^ Carter v. Gregory, 8 Pick. 165. cuted before tlie note was signed, and 3 Baird r. Williams, 19 Pick. 381. In was dissolved by a subsequent atlaclier. Swift V. Crocker, 21 Pick. 211, the at- [204] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 282 creditor was not given until after the subsequent attachment had been levied ; the court held, that under the statute in question, the subsequent attacher had no right to make the question, be- cause the facts did not show that the debt was not justly due and owing, or that it was not payable, when the suit was brought.^ § 281. Whether, if a debtor himself cause an attachment to issue, and to be executed on his property in favor of his creditor, without the knowledge of the latter, a subsequent attacher can take advantage of that fact to dissolve the attachment, does not seem to have been directly decided ; but in Massachusetts a case very nearly of that description was presented, where a debtor, at the time when his debt was incurred, promised to secure his cred- itor in case of difficulty ; but the manner in which this was to be done was not agreed upon ; and the debtor afterward, being in failing circumstances, caused his own property to be attached on behalf of the creditor, but without his knowledge ; and the cred- itor, before he was informed of the attachment, had said, that if the debtor did not secure him, he was a rascal. The court held, that the agreement to secure the creditor was tantamount to the creation of an agency in the debtor, which authorized him to cause the attachment ; or if not, that the attachment was ratified by the creditor ; and in either case it was valid against subse- quent attaching creditors.^ § 282. There are other cases in which attachments will be held to be dissolved, by the acts of the plaintiff, as to subsequent attaching creditors. Each attacher has a right to the surplus of the defendant's property, after satisfying the previous attach- ments ; and any act of an attaching creditor, after the institution of his suit, altering his writ, or changing or increasing the de- mand upon which he attached, is, in effect, a fraud upon the subsequent attachers, and is regarded as dissolving his attach- ment so far as they are concerned. In the case of an alteration of the writ, it has been held, that an attachment is dissolved, as between creditors, by amending the writ, under leave of court, b}^ striking out the name of one of two defendants, so that the action stands as against the other 1 Baird v. Williams, 19 Pick. 381. 2 Bayley v. Bryant, 24 Pick. 198. [265] § 282 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. defendant only.i So, too, by changing the place to which the writ is made returnable.^ In the case of changing or increasing the demand upon which the attachment was obtained, it has been decided, that the fiHng of a new count to the declaration, which does not appear by the record to be for the same cause of action as that originally sued on, will dissolve the attachment. A case of this description first came up in Massachusetts, upon the following facts. The first attacher's writ contained two counts, the first, upon a promissory note for $171.82, the second for $2,000, money had and received. While the action was pending, the plaintiff added three counts ; the first for $322, the balance of an account annexed, in which the charges were principally for labor, articles sold and delivered, and money paid ; the second, on a promissory note for $90 ; and the third, on a promissory note for $500. Upon this state of facts a controversy arose between this plaintiff and a subsequent attacher, each claiming the proceeds of the property attached. The court declared the first attachment dissolved, and used the following language : " We think that after an attachment, or holding to bail, the plaintiff cannot alter his writ to the injury of a subsequent attaching creditor, or of bail. The subsequently attaching creditor has a vested right to the excess beyond the amount of the judgment to be rendered upon the writ of the first attaching creditor, as it was when served. So, bail are not to be made liable for a greater sum than was included in the writ at the time when they entered into the bail-bond. It is said that the second count would cover the additional counts ; but it cannot be ascertained from tlie record that it was intended to cover them." ^ The same court held the same views, in a subsequent case, where the declaration contained a count for money had and received, and a count for goods sold and deliv- ered ; and the plaintiff, in the progress of the suit, under a leave to amend, filed nine new counts, on notes, checks, and for money lent, &c. The court there say : " The claim or cause of action, for the security of which a creditor obtains his lien by attach- ment, should be clearly indicated in the writ and declaration. The declaration should set forth clearly the cause or causes of 1 Peck V. Sill, 3 Conn. 157. man v. Creech, 112 Mass. 180. See Young 2 Burrows v. Stotlilard, 3 Conn. 431; v. Broailbent, 23 Iowa, 531); Wood v. Starr v. Lyon, 5 Ibid. 538. Denny, 7 Gray, 510. 3 Willis V. Crooker, 1 Pick. 204 ; Free- [266] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 282 a action to be secured by the attacliment. And it would be a manifest injustice to a subsequently attaching creditor, to permit the prior attaclier to amend, by the introduction of claims which were not originally set forth and relied upon in the declaration ; for he has a vested interest in the surplus. The rights of the at- taching creditors should be ascertained as they existed and were disclosed by the writ and declaration, at the time when they made their attachments. If it were otherwise, the attachment law might be made a most powerful engine of fraud, that would work up the whole of the debtor's property for the use of the first attacher who should think proper to enlarge his claims suf- ficiently to embrace it."^ So, where a defendant in an attach- ment suffered default, and the plaintiff took judgment for the whole claim in suit, without deducting therefrom the amount of certain articles received by him from the defendant in part pay- ment of the claim ; it was held, that his attachment was thereby vacated as to subsequent attaching creditors.^ So, where, by agreement between the plaintiff and the defendant, judgment was taken for claims which were not recoverable under any count in the declaration; it, was held to be a fraud which dissolved the attachment as against a subsequent attacher.^ § 282 a. The doctrines stated in the next preceding section were applied in Colorado, in a case where, pending the attach- ment, the defendant sold real estate upon which the attachment 1 Fairfield v. Baldwin, 12 Pick. 388. . covered them, and should seek to collect 2 Peirce v. Partridge, 3 Metcalf, 44. this whole amount of his debtor, this 3 Page V. Jewctt, 46 New Hamp. 441. would be doing a wrong to the rights of In this case the court, after a review of subsequent attaching creditors wliich the authorities in that and other States, vitiates his attachment, as against such thus sums up the doctrine on this sub- creditors, unless it be shown affirmatively ject : " So, if a prior attaching creditor that the error was the result of mere takes his judgment for a larger amount mistake or accident; in wliich last case than he could properly have done under the whole judgment will not be held void his declaration, eitlier in consequence of as to subsequent attaching creditors ; but adding amendments for new causes of in the absence of such affirmative proof action, or without such amendments, or of mistake. &c., the wrong done to subse- if he take judgment for a claim larger quent attaching creditors, or attempted than was due at the time the writ was or intended to be done, the law pro- made and served, or on any other claim nounces a fraud upon them, and visits than that Avhich was intended to be in- the fraud with its ordinary penalty ; it eluded in the suit at the time of the makes the judgment into which the fraud attachment, even though the or/ damnum enters void as to those injured or in- in the writ, and the counts in the original tended to be injured by the fraud, and declaration were large enough to have the attachments are so far vitiated." [267] § 284 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. had been levied, and after the sale, the plaintiff, with knowledge thereof, amended his proceedings, and took judgment by confes- sion for more than double the amount for which the attachment was levied on the real estate, and under execution on that judg- ment the real estate was sold. The purchasers of the real estate from the defendant filed a bill in chancery to set aside the sale, and release and discharge the lien of the judgment ; and the bill was sustained, upon the ground that the lien of the attachment was lost, as against subsequent purchasers from the defendant, by the increase of the plaintiff's demand, with notice of the pre- vious sale by the defendants.^ But, on appeal, this decision was reversed, and the bill dismissed, by the Supreme Court of the United States, on the ground that the complainants in the bill were not creditors, but purchasers pendente Ute, and therefore as conclusively bound by the results of the litigation, whatever they might be, as if they had been parties to it from the outset.^ § 283. In Maine, where the parties, during the pendenc}' of a suit by attachment, made a settlement of all their accounts, by which a balance was found due to the plaintiff, for which judg- ment was entered in his favor by consent; and the settlement included some demands for which the writ contained no proper counts, and some which were not payable till after the action was commenced ; it was held, that the attachment was dissolved in toto, as to subsequent attaching creditors.*^ § 284. A very strong case was where, by a slip of tlie pen, in making out the writ, the command to the officer was to attach to 1 Tilton V. Cofickl, 2 Colorado, 392. might be larger tlian was then antici- 2 Cofield r. Tilton, 03 United States, pated. They took the cliances, and must 1G3. Tiie court said: "The appellees abide the result. Having obtruded tliem- [complainants] voluntarily took the posi- selves upon the property attached, they tion tiiey occupy. Tiiey chose to buy a insist that tiieir purchase narrowed the large amount of property, including that rights of the plaintiffs, and circumscribed in controversy, from the fugitive debtor, the jurisdiction of the court. Sucii is not This was done after the latter had been the law. After their purchase, the court, seized under the writ of attachment, and the parties, and tlie res, stood in all re- while tlie suit in which it was issued was spectsas they stood before; and tlie judg- still pending. They took the title sub- ment, sale, and conveyance liave exactly ject to the contingencies of the amend- the same effect as if tiie appellees and the ments that were made, and of everything facts upon which they rely had no exist- else, not coram uon jiulice, the court tuight ence." see fit to dii in the case. The attachment " Clark i'. Foxcroft, 7 Maine, 348; might be discharged, or the judgment Fairbanks v. Stanley, 18 Ibid. 2'JO. [268] CHAP. Xr.] AND FRAUDULENT ATTACHMENTS. § 286 the value of six dollars only, •u'hile the cause of action set forth, and the judgment afterwards recovered, were for more th&n four hundred dollars. With the consent of tlie defendant, the writ was amended by inserting the word hundred after the word six; and yet it was decided, that a subsequent attacher was not affected by the amendment, and that he might maintain an action against the officer for applying the attached property in full satis- faction of the previous attachment ; there not being sufficient to satisfy both.^ § 285. But where an attorney, inadvertently, and without the knowledge of his client, took a judgment and obtained execution for a sum known by his client to be more than was really due him, and on discovering his mistake, went to the officer holding the execution, and stated the sum that was actually due the plaintiff, and that he had come to give instructions relative to the service of the execution ; it was held, that, as there was no fraud- ulent intent, but a mere mistake, the attachment was not thereby dissolved.2 And so, a mere amendment of the declaration, by which the amount to be recovered is not increased, and no new cause of action is introduced, will not vacate an attachment. If, for example, there are money counts only in the declaration, which refer to a bill of particulars annexed, containing a descrip- tion of bills of exchange, notes, &c., which are to be offered in evidence ; counts subsequent!}'- added, technically describing those bills, notes, &c., would not be considered as new causes of action, but as entirely consistent witli the intent of the j^laintiff, as originally manifested in his writ and declaration. If, however, such an intent cannot be inferred from the writ and declaration, the new counts will be considered to be for other, and not for the original, causes set forth.'^ § 286. But where a declaration contains the mone}' counts, how is it to be determined what demands were put in suit, and what 1 Putnam v. Hall, 3 Pick. 445; Dan- Jewett, 46 New Ilamp. 441; Mendes v. ielson v. Andrews, 1 Ibid. 156. Freiters, 16 Nevada, 3S8. - Felton r. Wadsworth, 7 Gushing, 3 Fairfield v. Baldwin, 12 Pick. 388; 587. See, in the opinion of the court, the Miller v. Clark, 8 Ibid. 412 ; Ball v. Claflin, remarks upon the cases of Fairfield v. 5 Ibid. 303 ; Laighton v. Lord, 9 Foster, Baldwin, and Pierce v. Partridge. See 237 ; McCam v. Piivers, 7 Iowa, 404 ; Laighton v. Lord, 9 Foster, 237 ; Page v. Austin v. Burlington, 34 Vermont, 506. [269] § 28-8 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. were afterwards introduced ? The rule seems to be, that those which the plaintiff owned when the suit was brought, and which were due and payable, and liable to be introduced without amendments, and which were so introduced, and judgment obtained upon them, cannot, in the absence of contradictory proof, be regarded as not in suit: for instance, none of the cases decide that an attachment would be dissolved, by proving a promissory note under a money count originally contained in the declaration.^ § 287. As before stated,^ a mere amendment of a declaration, by which the amount to be recovered is not increased, and no new cause of action is introduced, will not dissolve an attachment. Nor will an amendment of the given name of the plaintiff,^ or of one of two defendants.* But the introduction of new defendants into the writ after the levy of it will have that effect. Thus, where partnership property was attached, upon a writ containing the names of three only out of four partners, and the next day the name of the fourth was inserted, and a new attachment made upon the same property ; but in the mean time another creditor had attached the property, upon a writ against the four partners ; it was decided, that the first attachment was vacated as against the second.^ Much more will an attachment be dissolved by the. substitution of another defendant for the one against whom it issued.® § 288. Another act of a i)laintiff by which, as to subsequent at- tachers, it is said his attachment will be dissolved, is the referring of the action, and all demands hettveen the 2Jlaintiff and defendanU to arbitration ; unless it be shown that the reference covered only the demands sued upon. The Supreme Court of Maine carried the doctrine a step further, and held, that it makes no difference whether any new demand beyond the original cause of action is introduced, or if introduced, whether it is allowed, or not. The mere act of referring, where the rule of reference is carried into effect, is considered to dissolve the attachment ; on the principle, 1 Fairbanks v. Stanley, 18 Maine, 29G. •• West r. Piatt, 110 Mass. 808. 2 Ante., § 285. ^ Denny v. Ward, 3 Pick. lU'J. 3 Cain' V. Rockwell, ir!2 Mass. 193; c Milletlfcevillc Man. Co. v. Rives, 44 Wight V. Ilale, 2 Gushing, 480. Georgia, 470. [270] CHAP. XI.] AND ■FRAUDULENT ATTACHMENTS. § 289 that, for the sake of a general settlement with his adversar}-, or for any other reason satisfactory to liimself, the plaintiff consents to waive and does waive the security he holds under his attach- ment. And the court say, " Unless such a principle should be adhered to, a plaintiff's demand might be essentially increased, by the introduction of new causes of action, and in this manner a second attaching creditor might lose the benefit of his attach- ment, and though with no immoral motive on the part of the plaintiff, such second creditor would be, in legal contemplation, defrauded of his rights." ^ The better rule, however, seems to be that adopted in Massa- chusetts, where, though it was at first held, that the mere fact of entering into such a reference dissolves the attachment,^ in a sub- sequent case that decision was limited, and it was determined that, if it be shown that no new demand was admitted by the referees, the attachment will not be dissolved.^ § 289. Fraudulent attachments will also be overturned, when brought in conflict with the rights of third persons, other than attaching creditors. Thus, where A., being desirous of purchas- ing certain mortgaged land, paid the mortgagee the value of his interest therein, and the mortgagee reconveyed to the mortgagor, to enable him to give a deed of the whole estate to A., but imme- diately afterwards, and before the deed to A. was executed, at- tached the land in a suit against the mortgagor, the attachment was declared fraudulent and void as against A.* A case involving similar j)rinciples came up in Vermont, under a petition to foreclose a mortgage. A. and B. were creditors of C, who had engaged to give A. security for his debt by a mort- gage on lands. On a certain day, finding himself in failing cir- cumstances, C. applied to B. and stated to him his pledge to A., and requested B. to prepare a note and a mortgage to A. to secure the payment of the note ; at the same time disclosing to B. his situation, and pointing out to him property to a large amount, which he requested B. to attach for liis own security. To this arrangement B. made no objection, and C. executed the note and mortgage and took them away, and the mortgage was lodged for 1 Clark V. Foxcroft, 7 Maine, 348. See ^ Secley v. Brown, 14 Pick. 177. Mooney r. Kavanaugh, 4 Maine, 277. * Spear v. Hubbard, 4 Pick. 143. 2 Hill V. Hunncwell, 1 Pick. 192. [271] § 289 SIMULTANEOUS, ETC., ATTACHMENTS. [CHAP. XI. record early the next morning. In the mean time, B. sned out attachments against C, and attached the premises embraced in the mortgage, together with the other property designated by C. The controversy was between A., claiming the property under the mortgage, and B., claiming it under the attachment. It was held, that the attempt by B. to defeat the arrangement he had previously acquiesced in, was inconsistent with good faith, and surreptitious, and that the mortgage should be preferred to the attachment. 1 In Xew Hampshire, a similar case arose, on this state of facts. A. had mortgaged certain real estate, apparently for its full value. B. and C. being both creditors of A., B. informs C. that he proposes to procure an arrangement by which that mortgage shall be removed and one taken to himself, and C. advises him to effect the arrangement, which is at once proceeded with. Be- fore the necessary writings are prepared, and while they are in progress, C. causes an attachment to be made of the land ; which does not become known to B. and the other parties, until their agreement was completed and the deeds recorded. B. then filed his bill in equity, setting forth the facts, and praying that C. might be enjoined against claiming an}' thing in the land contrary to the title of the plaintiff under the mortgage, and that the attachment might be postponed to the mortgage. The court, considering the attachment under such circumstances to operate as a direct fraud upon B., granted the decree according to the prayer of the bill.^ So, where a convej^ance had been made of certain lands, on the Tth of May, and before it could be properly recorded, one attached the lands to secure a note signed b}' the grantors on the 8th of May, and payable in thirty days, but which was ante- dated, as the 3d of April preceding, being the time when the goods \\ hich formed the consideration of it had been sold on a credit of six months; it was held, that the antedating the note, and creating a present debt, on which the attachment of the lands was made, was a fraud on the grantees, and did not disturb their rights under the conveyance, whatever might be the validity of the proceedings as between the parties.^ 1 Temple v. Hooker, 6 Vermont, 240. ^ Briggs v. French, 2 Sumner, 251. 2 Buswell V. Davis, 10 New Ilamp. 413. [272] CHAP. XII.] CUSTODY OF ATTACHED PROPEKTY. § 291 CHAPTER XIT. CTJSTODY OF ATTACHED PEOPEETY. § 290. When an officer levies an attachment on personal prop- erty, he becomes liable therefor at the termination of the suit ; on the one hand, for its production to satisfy the plaintiff's exe- cution, if obtained ; on the other, for its return to the defendant, if the suit fails, or the attachment be otherwise dissolved. Hence, the first dutj^ of the officer is to retain possession of the prop- erty. If he do not, he will be regarded as having abandoned the attachment ; and its lien, as to subsequent attachers, or bond fide purchasers from the defendant, will be lost.^ He has no author- ity to deliver the attached property to the plaintiff.^ But if the plaintiff consent that the property pass out of the officer's posses- sion, the defendant cannot take advantage of that fact to dissolve the attachment. Thus, where a steamboat was attached, but, by agreement between the plaintiff and the master of the boat, was allowed to proceed on its voyage, with the understanding that on its return it should be delivered to the sheriff, subject to the writ ; it was held that, as between the parties to the action, the lien of the attachment was not extinguished.^ § 291. In view of this liabihty, it is necessary that the officer should sustain such a relation to personal property which he has seized, as will enable him to hold it. To this end, he is, by the levy of the attachment, and the reduction of the property into 1 Nichols V. Patten, 18 Maine, 231; Sanford v. Boring, 12 California, 539; Waterliouse v. Smith, 22 Ibid. 337; Chadbourne v. Sumner, 16 New Hamp. Thompson v. Baker, 74 Ibid. 48; Bald- 129. win V. Jackson, 12 Mass. 131 ; Boynton '^ Vanneter v. Grossman, 39 Michigan, V. Warren, 99 Ibid. 172; Sanderson v. 810. Edwards, 16 Pick. 144; Bruce v. Holden, 3 Conn v. Caldwell, 6 Illinois (1 Gil- 21 Ibid. 187; Taintor v. Williams, 7 man), -531. See Fifield v. Wooster, 21 Conn 271; Pomroy v. Kingsley, 1 Tylor, Vermont, 215. 294; Fitch v. Rogers, 7 Vermont, 403; 18 [273] §291 CUSTODY OF ATTACHED PROPERTY. [CHAP. XII, his possession, vested with a special property in the latter, which enables him to protect the rights he has acquired ; ^ and this property constitutes an insurable interest, which he may protect by obtaining insurance thereon ; though he is not under obliga- tion to do so.^ This special property of the officer continues so long as he remains liable for the attached effects, either to have them forth- coming to satisfy the plaintiff's demand, or to return them to the owner, upon the attachment being dissolved ; but no longer.^ For any violation of his possession, while his liability for the property continues, he may maintain trover,* trespass,^ or re- plevin ; ^ and in any such action the defendant cannot set up as a defence any informality or irregularity in the attachment suitj And the officer alone can maintain any such action ; it cannot be maintained by the attachment plaintiff.^ If the officer die before action brought in his favor against a trespasser, his administrator may maintain trover, for the benefit of the attaching creditor.^ And if the conversion take place while the officer who attached the property remained in office, his subsequent resignation of his 1 Post, § 371 ; Barker v. Miller, 6 John- son, 195 ; Ilotclikiss v. McVickar, 12 Ibid. 403 ; Wilbraham v. Snow, 2 Saun- ders, 47 ; Ladd v. North, 2 Mass. 514 ; Gibbs I'. Chase, 10 Ibid. 125; Whittier y. Smitli, 11 Ibid. 211 ; Poole v. Symonds, 1 New Ilamp. 289 ; Huntington v. Blais- dell, 2 Ibid. 317 ; Odiorne v. Colley, Ibid. GG; Lathrop v. Blake, 3 Foster, 46; Nichols V. Valentine, 36 Maine, 322 ; Stiles V. Davis, 1 Black, 101 ; Foulks v. Pegg, G Nevada, 136. A condensed sum- mary of t'le rides concerning the relation of an officer to personal property he has attached, is thus given by Isiiam, J., in Braley v. French, 28 Vermont, 54G : " In the attachment of personal estate, the officer acquires a special property, and the right to its custody and possession. For any injury to it, tlie right of action is in the officer, as, in any termination of the case, he is accountable for the prop- erty either to the creditor or debtor. That special property the officer may re- lease, so as to destroy any lien upon the property created by the attachment. lie may permit the possessi(')n of the prop- erty to remain with the debtor, in which case it can be held by a subsequent at- [274] tachment, or a subsequent purchaser, free from any lien or claim of tlie officer upon it. His right over the property is inde- pendent of the creditor or debtor, as, in a given event, he is responsible for it to the debtor, and in another event to the creditor ; and that right exists so long as that special property continues in liini." '^ White V. ^Madison, 26 Howard Pract. 481. 3 Collins V. Smith, 16 Vermont, 9; Gates V. Gates, 15 Mass. 310; Holt v. Burbank, 47 New Ilamp. 164. * Ludden v. Leavitt, 9 jMass. 104; Badlam v. Tucker, 1 Pick. 389; Lowry V. Walker, 5 Vermont, 181 ; Lathrop v. Blake, 3 Foster, 46. s Brownell i\ IManchester, 1 Pick. 232 ; Badlam v. Tucker, Ibid. 389 ; Walker v. Foxcroft, 2 Maine, 270; Strout v. Brad- bury, 5 Ibid. 313; Whitney v. Ladd, 10 Vermont, 165. c Perley v. Foster, 9 Mass. 112 ; Gordon V. Jenney, IG Ibid. 465. 1 Marsiiall i-. Marshall, 2 Houston. 125. 8 Skinner v. Stuart, 39 Barbour, 206; Schaeffer v. Marientlial, 17 Ohio State, 183. y Hall V. Walbridge, 2 Aikens, 215. CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 292 office will not deprive him of his right of action.^ In order to maintain his special property, and to entitle himself to the con- tinued protection of the law, the officer must, in his proceedings with the property subsequent to the attachment, comply with all the requirements of the law, or show some legal excuse for not doing so ; and if he does not, he becomes liable, not only to those on whose behalf he acts, but also to the owner of the prop- erty, and those claiming under him and standing in his situation.^ Thus, if he sell the property without lawful authority, he is counted a trespasser ah initio ; and the pendency of the action in which the attachment was made is no obstacle to an immediate suit by the owner.^ § 292. To what degree of care and diligence in the keeping of attached property is an officer to be held? This question re- ceived a careful and elaborate consideration by the Supreme Court of Vermont; which is referred to here, rather than in another place, because it was raised in connection with the offi- cer's liability to the plaintiff in attachment, for not having prop- erty forthcoming on execution. Certain cattle were attached, and the officer being sued for failing to have them forthcoming, to be sold on execution, offered testimony to show that when they were attached, he delivered them for safe keeping, to one A. ; that the plaintiff's agent, who ordered the attachment made, was present and made no objection ; that A. put the cattle into a pasture, with a good and sufficient fence ; and in a few days after, the defendant, the owner of the cattle, without the knowl- edge or consent of the officer, or of A., took down the fence of the pasture, drove the cattle out, and put them in his own pas- ture, and gave such notice that other creditors attached and held the cattle. This testimony was rejected by the court, and the matter came up on the propriety of the rejection. The Supreme Court, after examining a number of cases cited in support of the plaintiff's action,^ proceed as follows : — 1 Polleyi;. Lenox Iron "Works, 4 Allen, * Tliose cases were, Jenner v. Joliffe, 329. G Jolins. 9, and 9 Johns. 381 : Cilley v. 2 Jordan v. Gallup, 16 Conn. 536. Jenness, 2 New Hamp. 87 ; Phillips v. 3 Ross V. Philbrick, 39 Maine, 29; Bridge, 11 Jlass. 242; Tyler v. Ulmer, Culver V. Rumsey, 7 Bradwell, 422; 12 Ibid. 163; Congdon v. Cooper, 15 Zschocke v. The People, 62 Illinois, 127. Ibid. 10 ; and Runlett v. Bell, 5 New Hamp. 433. [275] § 292 CUSTODY OF ATTACHED PROPERTY. [CHAP. XII. " Thus stand the decided eases which have been presented to the court. And it is needless to say they do not afford much aid in determinhig the question before us. We are left to decide it, much as we judge the general principles of the law of bailment and the kindred analogies require. " So far as the general principles of the law of bailment are concerned, there is not, at the present day, perhaps, any very striking reason to be urged why sheriffs should be laid under any higher degree of obligation in regard to keeping property, than other bailees for pay, i. e., ordinary care and diligence. But early in the history of the common law it was decided that, in regard to property taken on final process (and in England it is taken on no other ordinary process), the officer making the levy should be liable for its safe keeping and forthcoming, in all cases, unless hindered by public force, or inevitable accident, and that he could not excuse himself by showing a rescue even.^ The same rule of liability obtains in regard to the body, when once in custody upon execution.^ But when the body is arrested on mesne process, the sheriff may return a rescue.^ The reason as- signed in the books is, that, in the case of arrest and custody on final process, the officer has usually more time for preparation, and may, if he will, have the aid of the posse of the county ; but in the case of mesne process, he must arrest when the debtor is pointed out to him, and may be often required to do it suddenly, and cannot always be supposed to have the posse at his command, at a moment's warning. To my mind, the attempt at making a distinction in the cases, shows more reason for dispensing alto- gether with any such rigorous requirement, in either case, than it does for so wide a distinction between tlie two cases; but such is the law, and so are the reasons upon which its sages have seen fit to erect distinctions. "The only question now is, whether we shall adopt the analogy of this distinction in regard to property. The court are disposed to do it, for two reasons : 1. If we hold the sheriff and other officers liable, in the case of property attached on mesne process, only for ordinary care and diligence, such as other bailees for pay 1 Mil.lmay v. Smith, 2 Saund. .343, « 12 Mod. 10 ; O'Neil v. Marson, 5 Bur- n. .3 ; Clerk v. Withers, 2 Ld. Raym. row, 2812 ; 2 Saund. 244, note a. 1075. " Cases cited above, and note to 2 Saund. 345. [276] CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 292 are required to exercise, we place the liability upon a reasonable basis ; whereas the rigorous accountability imposed upon certain classes of bailees, on account of some supposed facility or temp- tation which they have been said to possess for collusive rescues or robberies, is not founded upon any just warrant, either of sound judgment or constant experience. I refer to the cases of common carriers, and sheriffs, in regard to property taken on final process. 2. We think there is far more reason for the distinction which we here make, in regard to the liability of sheriffs for the keeping of goods on mesne and final process, in analogy to their different liability for keeping the body when arrested on those different processes, than there is for the distinction made in this latter case. For when property is taken on final process, it is to be kept but a short time, at longest, so that it may be closely watched, and kept with this severe diligence for a few days, without materially interfering with the other duties of the sheriff. But in the attachment of property on mesne process, in matters of collection, there will ordinarily be a delay of from six to eighteen months, and in matters of controversy this delay will be extended to many years ; and to require the sheriffs to keep all property by them attached on mesne process, at all hazards, ex- cept inevitable accident, or public force, would, of course, justify an expense in proportion to the degree of responsibility required, and would thus, in many cases, defeat the object of the attach- ment, by consuming the property in needless expense. We think, then, there is very good reason why the officer attaching property on 7nesne process should only be liable to the same ex- tent as bailees for hire. If he return the attachment, he is, ijrhnd facie, liable to produce the property on execution, but as we think, may excuse himself by showing that it is not in his power, and that he has been guilty of no fault." ^ The same doctrine 1 Bridges v. Perry, 14 Vermont, 262 ; as it was in this case, by the use of the Smith V. Church, 27 Ibid. 168. In Briggs terms ' ordinary and common care, dili- V. Taylor, 28 Vermont, 180, this subject gence, and prudence.' And it is proba- came again before tlie same court, when ble enough these terms might not always Eedfield, C. J., presented the following mislead a jury. But it seems to us, they views : " As a new trial becomes neces- are somewhat calculated to do so. If sary, it will be of some importance to tlie object be to express the medium of inquire in regard to the proper mode of care and prudence among men, it is cer- detining the duty of the officer in keep- tain tliese terms do not signify a fixed ing goods attached on mesne process. It quantity of mediocrity even. For if so, is usually defined in practice, in this they would not be susceptible of the State, certainly so far as we know, much degrees of comparison, as more ordinary [277] 292 a CUSTODY OF ATTACHED PROPERTY. [CHAP. XII. was held in New Hampshire, Massachusetts, Tennessee and lowa.i § 292 a. It is of special importance that an officer should not leave attached property in the possession of the defendant, unless authorized thereto by some statutory provision. The possession of personal property is the only indicium of ownership ; and to suffer a debtor to retain possession of his pfojierty after it has been attached is j^rimd facie evidence that the attachment is fraudulent in respect to other creditors; whose attachments, or a bo7id fide purchase from the defendant, will prevail against the attachment whose lien has thus been lost.^ And in such case it has been held, that the officer has not even constructive posses- sion of the property.^ Hence, he cannot, consistently with the preservation of his lien, constitute the defendant his agent to keep the property.^ But though the lien will be lost by suffering the propert}' to go back into the possession of the debtor, that result will not be produced by the defendant or his family being allowed, without interfering with the officer's possession, to use such articles as will not be injured by such use. Therefore, where attached effects were left in the house inhabited hy the and most ordinary, which nuediura, and middle, and mean, are not. Tiie trutli is, that ordinary and middling and medi- ocrity even, when applied to character, do import to the mass of men, certainly, a very subordinate quality or degree ; something quite below that which we desire in an agent or servant, and which we have the right to require in a public servant, especially. A man who is said to be middling careful, or ordinarily care- ful, is understood to be careless, and is sure never to be trusted. . . . The court, in Bridges v. Perr^-, as will be obvious from a careful examination, had no pur- pose of excusing this class of officers from an\' degree of care and diligence, which careful men would expect under the circumstances. And this, it seems to us, is the true measure of liability, in all cases of bailment. The bailee is bound to tliat degree of diligence, which the manner and nature of his employ- ment make it reasonable to expect of him ; any thing less than this is culpable in him, and renders hiiu liable. The [278] conduct of men in general in the region where the attachment is made, may be some guide to what ought to be required of the defendant in keeping property attached. We mean, of course, prudent and careful men ; for no-one is expected to go very essentially beyond the com- mon custom of the country in such matters, as it must be attended with extraordinary expense, and a question might thereby arise as to the propriety of incurring such expense." See Moore V. Westervelt, 1 Bosworth, 357. i Kendall v. Morse, 43 New Ilamp. 55.3 ; Parrott i-. Dearborn, 104 ^lass. 104 ; Snell V. Tiie State, 2 Swan, 344; Cresswell v. Burt, 61 Iowa, 590. - Gower v. Stevens, 19 Maine, 92; Dunklee v. Tales, 5 New Ilamp. 527; Pomroy r. • Kingslcy, 1 Tyler, 294; Taintor v. Williams, 7 Conn. 271 ; Baker V. Warren,. G Gray, 527; Flanagan v. Wood, 33 Vermont, 332. 3 Knap V. Sprague, 9 Mass. 258 ; Pills- bury V. Small, 19 Maine. 4.35. * Gower v. Stevens, 19 Maine, 92. CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 292 d defendant, in the charge of a keeper appointed by the ofBcer, and the keeper suffered the defendant's family to use them, the court, finding that the use was permitted from motives of humanity and compassion, and not with a design to cover the property against creditors by a pretended attachment, held that the attachment was not thereby dissolved.^ Nor will the lien be lost by the officer's employing the wife of the defendant as keeper of the property, where the law authorizes a married woman " to carry on any trade or business, and perform any labor or services on her sole and separate account." ^ § 292 h. Where an officer leaves attached goods in the posses- sion of the defendant, or has unauthorizedly ceased to retain possession of them, and another officer attempts to attach them, notice to him of the first attachment will not prevent his acquir- ing a lien on them ; for, though an attachment may have been made, yet the second officer may justly assume it to have been abandoned, when the possession of the first officer was relin- quished. ^ But if the second officer know that there is a subsist- ing attachment, and an unrescinded contract of bailment, although the defendant might at the time have possession of the property, he cannot acquire a lien by attaching it.* § 292 c. If an officer suffer articles he has attached to be mixed with other articles of a like kind, which had been pre- viously attached by another officer, who returns an attachment by himself of the whole, the special property of the officer who permitted the intermixture is lost, and the other officer is entitled to hold the articles.^ § 292 d. What effect upon an attachment has the removal of the attached property, by the officer, beyond his bailiwick, into a foreign jurisdiction? It seems clear that the mere fact of such removal, without regard to the circumstances connected with it, will not dissolve the attachment. In determining its effect, 1 Baldwin v. Jackson, 12 Mass. 131. v. Stevens, 19 Maine, 92 ; Young v. See Train v. Wellington, Ibid. 49-5; AYalker, 12 New Ilamp. 502; Flanagan Young V. Walker, 12 New Hamp. 502. v. Wood, 33 Vermont, 332. '^ Farringtonv. Edgerley, 13 Allen, 45-3. ■* Young v. Walker, 12 New Hamp. 3 Bagley v. Wliite, 4 Pick. 395 ; San- 502. derson v. ildwards, 16 Ibid. 144 ; Gower ^ Gordon v. Jenney, IG Mass. 465. [279] § 292 e CUSTODY of attached property. [chap. xn. therefore, regard must be had to the object and manner of the removal. The first point to be determined is, whether the pur- pose of the officer in the removal was a lawful one ; and next, whether his possession of the property, personally or by another, was continued. If the purpose was lawful and the possession continued, the attachment would not be dissolved. But if the purpose was unlawful, though his possession remained, or if law- ful, and he lost his possession, his special property in the goods would be devested. Thus, where an officer attached certain sheep in Massachusetts, and delivered them to a keeper in Rhode Island, taking his obligation to re-deliver them on demand ; it was held, that the officer's special property was not thereby de- termined.i Here, the purpose was entirely lawful, and the pos- session of the keeper was that of the officer. But where a sheriff attached certain cotton at Vicksburg, Mississippi, and without authority of law, or of the parties to the suit, shipped it to a commission merchant in New Orleans, with instructions to sell it at private sale, and remit the proceeds to him ; and the proceeds were attached in the hands of the mer- chant by another creditor of the defendant, and the Vicksburg sheriff claimed them ; it was held, that the officer had violated his official duty in sending the cotton to New Orleans, and that his special property in it was lost.^ § 292 e. The doctrines thus far stated apply to the acts of the officer himself. We come now to a class of cases which, for con- venience, require a separate notice, as involving the results of acts done by parties other than the officer, though the geneial prin- ciples are, on the whole, similar. It is customary, and often necessar}^ for an attaching officer to place attached property, for safe keeping, in charge of a servant appointed by himself, whose possession is his possession. In such case the lien of the attach- ment is in no sense lost by the officer's possession ceasing to be personal. But if the servant placed in charge of the property abandon it, and it come into the possession of an adverse claim- ant,^ or be attached by another officer,* the lien of the first attachment will be lost. 1 Brownell v. Manclicster, 1 Pick. 232. ^ Carrinprton v. Smith, 8 Pick. 419. 2 Dick V. Bailey, 2 Louisiana Annual, ^ Sanderson i'. Edwards, IG Pick. 144. 974. [280] CHAP. XII.] CUSTODY OF ATTACHED PROPEETY. § 292 e 111 such cases, what act, what species of possession, and what degree of vigilance, will constitute legal custody, is often a ques- tion of difficulty, depending upon a variety of circumstances, hav- ing respect to the nature and situation of the property, and the purposes for which custody and vigilance are required ; such as protection from depredation by thieves, preservation from the weather and other causes of damage, and especially giving notice to other officers, and to all persons having conflicting claims.^ Where wood and 1 amber lying on a wharf were attached, and placed by the officer in charge of a keeper, and on a Sunday morning the keeper went away from the wharf, and returned in the afternoon, having in the mean time secured the property in the manner usual on Sundays, by locking the gates of the wharf and taking the key with him ; it was held, that there was no neg- lect on the part of the keeper, that his custody was still legal, and that the attachment was not abandoned.^ So, where an attach- ment was levied on a parcel of hewn stones lying scattered about on the ground, which were placed by the officer in charge of the plaintiff, whose place of business was about fifty or sixty rods from the place where the stones lay, and in sight of them, and whose boarding-house was also in sight of them ; it was held, that, though no removal of the stones took place, 3-et the officer remained in the constructive possession of them. The court said : " It is not necessary, to continue an attachment, that an officer or his agent should remain constantly in the actual posses- sion. The nature of the possession and custody which an officer is to keep, will depend upon the nature and position of the prop- erty, as ships, rafts, piles of lumber, masses of stone, or lighter, or more portable, or more valuable goods. In general it may be said that it shall be such a custody as to enable an officer to retain and assert his power and control over the property, so that it cannot probably be withdrawn, or taken by another without his knowing it. Here, it is manifest the officer did not intend to abandon the attachment, and that the measures he took, consid- ering the bulky nature of the property, and the situation in which it was placed, were sufficient to continue his possession and preserve his attachment." ^ 1 Sanderson v. Edwards, 16 Pick. 144. ^ Hemmenway v. 'U'heeler, 14 Pick. 2 Fettyplace i.-. Dutch, \% Pick. 388. 408. See Commonwealtli v. Brigham, 123 Mass. 248. [281] § 295 CUSTODY OF ATTACHED PROPERTY. [CHAP XII. § 293. As previously stated,^ the officer must comply with all the requirements of the law, or show some legal excuse for not doing so. We will, therefore, consider what will, and what will not, excuse au officer, for not having attached property forth- coming on the execution. § 294. Of sufficient excuse. There can be no doubt that an officer may excuse his failure to have property in hand to answer the execution, by showing that, though attached as the property of the defendant, it was, in fact, not his. Whether, if this fact was known to him when he levied the attachment, and he, not- withstanding, made the levy, and returned the property as attached, he could afterwards excuse himself on that ground, is questionable;^ but where, at the time of the levy, he believes the property to be the defendant's, and takes it as such, and it turns out afterwards that it was not, and he fails to have it ready to meet the execution, he can certainly escape liability by proving the fact to have been so.^ So, if an officer attach property of the defendant, which is by law exempt from attachment, he cannot be held responsible for its non-delivery on execution, unless it was attached with the consent of the defendant.* So, if he attach property which is in custodia legis, and therefore not attachable, he is not liable for failing to have it forthcoming on execution.^ And if attached property, of which due care is taken by the officer, be lost by fire or theft, the oflficer is not liable for the loss ; otherwise, however, if it be burned or stolen while he omits due care to prevent such loss.^ § 295. Of insufficient excuse. An officer cannot protect him- self from his obligation to have the property forthcoming on exe- cution, by making return that he attached it '■'■at the risk of the 'plaintiff.'''' Such a return could not affect the rights of the cred- itor, or relieve the officer from any portion of his responsibility .^ 1 Ante, § 201. Mapiie v. Seymour, 5 "Wemloll, 009 ; 2 French i'. Stanley, 21 Maine, 512. Mason v. Watts, 7 Alabama, 703 ; State 3 Fuller r. Ilolden, 4 Mass. 498 ; Tyler v. Ogle, 2 Houston, 371. V. Ulnier, 12 Ibid. IC:]; Denny v. Wil- * Cilley r. Jenness, 2 New Ilamp. 87. lard, 11 rick. 519 ; Canada r. Soutliwick, » Ante, § 251 ; Hale v. Duncan, Bray- 16 Ibid. 550 ; Dewey v. Field, 4 Metcalf, ton, 132. 381 ; Jordan v. Gallup, 10 Conn. 530 ; « Dorman r. Kane, 5 Allen, 88 ; Starr Cilley V. Jenness, 2 New Hamp. 87 ; v. Moore, 3 McLean, 354. French v. Stanley, 21 Maine, 512 ; Chap- ' Lovejoy v. Ilutcliins, 23 Maine, 272. man u. Smith, 10 Howard Sup. Ct. 114; [282] CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 297 Nor can lie contest the validity of the jndgment against the defendant in the action in which he attached the property, for the purpose of relieving himself from responsibihty for the property.^ § 296. If an officer attach property under an informal writ and afterwards the writ is altered and made to assume a legal form, and the plaintiff obtain judgment upon it, the subsequent altera- tion will not excuse the ofhcer from keeping the property safely, that it may be applied to satisfy the plaintiff's judgment, or returned to the defendant, if he should become entitled to it.^ § 296 a. In some States, two or more courts of co-ordinate jurisdiction direct their processto the same officer. In such case, if he attach property under a writ issued out of one court, and afterwards attach it again under a writ from another court, the latter court may order the property to be sold, but can only deal with the excess of the proceeds of the sale over the amount of the first attachment. If it assume to apply the proceeds to the second attachment, and the officer submit to its mandate to that end, it will form no excuse for his not having the proceeds forth- coming to satisfy the first attachment.^ § 297. The taking of attached property out of the officer's cus- tody, b}' a wrong-doer, without any act of abandonment on the part of the officer, will not defeat the attachment;'^ nor will it excuse his failure to have it forthcoming on execution.^ In such case, he may follow and retake it wherever he may find it, even if taken into another State ; ^ and he may maintain an action against the wrong-doer, or against another officer who subse- quently attached it.'^ In an action against an officer for such a failure, the property consisted of a quantity of logs, and he offered to prove that the logs were afloat in a body, with a boom around them, on their way from one point to another, and that the cur- rent of the water and the power of the wind were so great that the officer, with any force he could command, could not stop the 1 West V. Meserve, 17 New Ilamp. 432. ^ Lovell i'. Sabin, 15 New Hamp. 29. 2 Childs V. Ham, 2.3 Maine, 74. 6 Utley i'. Smith, 7 Vermont, 154 ; 3 Weaver ;;. Wood, 49 California, 297. Rhoads v. Woods, 41 Barbour, 471. * Harriman v. Gray, 108 Mass. 229 ; '^ Butterfield v. Clemence, 10 Gushing, Lovell r. Sabin, 15 New Hamp. 29. 269. [283] § 297 a CUSTODY of attached PROPEETY. [chap. XII. logs in his precinct, and that the parties in possession of them were able to resist, and did successfully resist, his taking or hold- ing possession of the logs, until they had arrived in another county ; it was held, that the evidence was rightly rejected ; the facts, if true, constituting no defence.^ § 297 a. If the officer act under statutory provisions which dispense with his actual custody of the attached property, and, Avhile the property is out of his actual custody, it be wrongfully taken away and sold by the defendant, he cannot be held respon- sible for not producing it on execution. This was decided in Massachusetts, under a statute in these words : " When an at- tachment is made of any articles of personal estate, which by rea- son of their bulk, or other cause, cannot be immediately removed, a copy of the writ and of the return of the attachment ma}^ at any time within three days thereafter, be deposited in the office of the clerk of the town in which it is made, and such attach- ment shall be equally valid and effectual, as if the articles had been retained in the possession and custody of the officer." The officer attached property which, by reason of its nature and bulk, could not be easily removed, and the defendant, without his knowledge or consent, removed and sold it. There was no proof of negligence or official misconduct on the part of the officer, or that the loss of the property could have been prevented by any care on his part, without retaining the possession. The court said : " The language of the statute is this : ' Such attach- ment shall be equally valid and effectual, as if the articles had been retained in the possession and custody of the officer.' We think it follows clearly that property thus attached, although a lien is created upon it for the benefit of the creditor, is not to be regarded as in the possession and custody of the officer, and that no such responsibility devolves upon him as if it were. . . . We do not mean to imply that the officer might not be responsible for any neglect or misconduct in relation to the property. If there were any collusion with the debtor, wrongful omission to make the attachment known to him, or neglect of interfering to protect the property, when, by a change of circumstances, its removal and reduction into the officer's possession became proper or necessary, the rule might be different. We only decide that 1 Lovcjoy r. Ilutcliins, 23 Maine, 272. [284] CHAP. XTI.] CUSTODY OF ATTACHED FEOPERTY. S 300 the officer is not responsiLle as if the goods were in his actual custody." ^ § 298. The capture by a hostile force of that part of an offi- cer's precinct in which he had attached property, will not excuse him from producing the same on execution, unless the common consequences of a capture, according to the laws of war, should follow ; such as restraint upon the persons of the inhabitants captured, which would prevent their removal, and upon their effects, so that they could not be withdrawn from the control of the captors. If the capture is not attended with these effects, there is no reason why the obligation of any citizen, created be- fore the capture, should be destroyed or impaired.^ § 299. The removal of an officer from office, between the time of levying the attachment and that of the issue of execution, will not excuse his failure to produce the property to meet the execu- tion ; for his special property remains, to secure the plaintiff in the fruits of his judgment.^ Nor can he escape liability for such failure, because the execution was delivered to another officer, instead of to him.^ Nor will he be relieved from his liability for a failure of his deputy to produce attached property to answer the execution, by reason that such failure took place after the latter had ceased to be his deputy.^ § 300. It is no excuse for failing to have property forthcom- ing, that it was of a^ perishable nature, and was, therefore, suf- fered to remain in the defendant's possession. The officer's duty is, whenever its further detention would expose it to ruin, and thus defeat the object of the attachment, to expose it fairly to public sale, and account for only the net proceeds.^ But to authorize a court to order the sale of such property as perishable, it must appear to be inherently liable to deterioration and decay within an early period. It is not sufficient to show that the keeping of the goods until they can be sold under execution will 1 Hubbell V. Root, 2 Allen, "iSS. Lawrence v. Rice, 12 Metcalf, 527 ; 2 Congflon V. Cooper, 15 Mass. 10. Sagely v. Livermore, 45 California, 61.3. 3 Tnkey v. Smith, 18 Maine, 125; 4^ Lovell u. Sabin, 15 New Hanip. 29. McKay v. Harrower, 27 Barbour, 463 ; ^ Morse v. Betton, 2 New Hanip. 184. 6 Cilley V. Jenness, 2 New Hamp. 87. [285] § 301 CUSTODY OF ATTACHED PROPERTY. [CHAP. XII. result in their depreciation in value because of' changes m their styles and fashions.^ The disposition of attached property, which is perishable in its nature, or the keeping of which would be attended M'ith great expense, is, to a considerable extent, now regulated by statutory provisions, and not left to the discretion of the officer. The court in which the suit is pending is, in many States, authorized to order a sale during the pendency of the suit. In such a case it was held in Missouri, that the power confided to the court was for the benefit of both parties, debtor as well as creditor, the ob- ject of the sale being merely to change the form of the property ; and that the plaintiff had no right, as in the case of an execution, to order the officer to stop the sale ; and, if the officer should neglect to sell as ordered, his responsibility would depend, as in similar cases of disobedience to the proper mandates of the court, upon the validity of the excuse he offers ; and the mere order of the plaintiff would constitute none whatever.^ § 301. An officer attached a pleasure-carriage and several wagons and sleds, which he left in open fields, where they were allowed to remain several months exposed to the weather. He was sued for neglect in preserving and taking care of the prop- erty. At the trial the plaintiff insisted, as a matter of law, that, as the officer had permitted the property to remain exposed to the weather, and unprotected, whereby it had suffered damage and become reduced in value, it constituted such a neglect of duty on the part of the officer as would rendei-" him liable. But the court left the question to the jury, to find whether the officer exercised ordinary care and prudence in the custody and preser- vation of the property attached ; and instructed the jury that it was the duty of an officer attaching property to use ordinary care and prudence in its custody and preservation ; and that ordinary care and prudence was such as men of ordinary care and pru- dence usually exercise over their own property ; and that it was for the jury to say whether it was common or ordinary care and prudence to keep such property as the carriage, wagons, and sleds in question in the manner in which they were kept. This ruling of the court was held by the Supreme Court 1 Fisk V. Spring, 32 New York Su- ^ Qetcrs v. Aelile, 31 Missouri, 380. prerae Ct. 307. [286] CHAP. Xir.] CUSTODY OF ATTACHED PEOPEKTY. § 304 of Vermont to be erroneous. Said the court, " We do not think a judge is ever bound to submit to a jury questions of fact, re- sulting uniformly and inevitably from the course of nature, as that such carriages will be injured, more or less, by exposure to the weather during the whole winter; or that a judge is bound to submit to a jury the propriety of such a course, when it is perfectly notorious that all prudent men conduct their own affairs differently. This uniformity of the course of nature or the conduct of business becomes a rule of law. But while there is any uncertainty, it remains matter of fact, for the consideration of a jury. It could not be claimed that it should be suljmitted to a jury whether cattle should be fed or allowed to driuk, or cows be milked." ^ § 302. The expense attending the keeping of attached prop- erty is no excuse for failing to produce it on execution. There- fore, where an officer had attached certain cattle, and did not have them forthcoming under the execution, and he was sued for his failure in this respect, it was held, that he could not show, either in bar of the action, or in mitigation of damages, that the country was, at the time of the attachment, in an impoverished state as to fodder for cattle, and that had he taken the cattle into possession, and kept them for the execution, the expense would have exceeded the value ; and that, in fact, they could not have been kept alive.^ § 303. "Where an officer is instructed by the plaintiff's attorney to deliver attached property to a certain person, and take his re- ceipt therefor, and he does so, he cannot be held to produce the property on execution.^ § 304. In an action against an officer for failing to keep at- tached property, so as to have it on execution, he cannot be per- mitted to impeach the plaintiff's judgment, except, perhaps, on the ground of fraud.^ Nor can he take advantage of the loss of the writ of attachment ; the fact of the existence of which may be proved by parol. ^ He may, however, show, in mitigation of 1 Briggs V. Taylor, 28 Vermont, 180. * Adams v. Balch, 5 Maine, 188; Mc- 2 Tyler v. Ulmer, 12 Mass. 163; Sewall Comb v. Reed, 28 California, 281. r. Mattoon, 9 Ibid. 535; Newman f. Kane, 5 Brown v. Rlclimond, 27 Vermont, 9 Nevada, 231. ; 583. 3 Rice V. Wilkins, 21 Maine, 558. [287] § 306 CUSTODY OP ATTACHED PROPERTY. [CHAP. XIT. damages, that tlie execution has, since suit brought against him, been satisfied ; but tlie plaintiff will, nevertheless, be entitled to recover nominal damages and costs.^ § 305. In order to fix the officer's liability for attached prop- erty, it is necessary that a demand should be made of him upon the execution. If the execution be placed in the hands of the officer who made the attachment, he being still in office, that will be sufficient notice to him, that the plaintiff claims to have the attached goods applied to satisfy the execution.^ Where no place is prescribed by law, at which a demand must be made, it may be at his place of abode, or wherever he may be. If the demand should be made of him at a place where the property is not, and he offers to deliver it to the officer at the place where it is, it will be the duty of the officer to repair to such place to receive it ; but if he refuse to deliver it at any place, this refusal will sub- ject him to an action, whether the proj^erty was at the place where demanded or not.^ If the property attached has been sold before judgment and execution, by consent of the parties, or under statutory authority, the officer is bound to keep the pro- ceeds of the sale in his hands to answer the execution, and the delivery of the execution to him authorizes him to apply the money in his hands to its satisfaction.* § 306. Where the attaching plaintiff has obtained judgment, and the officer who levied the attachment is still in office, the execution should be delivered to him ; but if he be no longer in office, should it be delivered to him, or to his successor in office ? and Avhat kind of execution should it be ? In a case of this description in New York, an oidinary fieri facias was directed to the sheriff of the county, and delivered to the succes- sor in office of him who had made the attachment. He demand- ed the attached property of his predecessor, wlio failed to deliver it, and the plaintiff in the attachment sued him for this failure. There was no statutorj- provision directly applicable to such a case, and the court considered the question on principle, and by analogy, and came to the conclusion that " the plaintiff was ahead 1 Brown v. Richmond, 27 Vermont, ' Scott v. Crane, 1 Conn. 255 ; Dunlap 583. V. Iluntinff, 2 Denio, 643. '^ Ilumplirevs r. Cobb, 22 Maine. 380. * Eastman v. Eveleth, 4 Metcalf, 137. [288] CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 309 of his time in demanding the attached property before he had issued a proper execution ; " which would have been a special one against the attached property, and should have been deliv- ered to the person, who, as sheriff, had levied the attachment ; and not having been delivered to him, he could not be made liable for failing to deliver the property to his successor.^ § 307. While the attachment is pending, can the defendant maintain an action against the officer for damage done to the property through his negligence ? In Maine, it was decided that he cannot, because during the pendency of the attachment the officer is liable to the plaintiff therein, whose claim is paramount to that of the defendant, until the attachment is dissolved ; and that a right of action does not accrue to the defendant until he is entitled to a return of the property, when he will have a full claim to indemnity .^ In Vermont, however, the opposite ground was taken, so far as to allow the attachment defendant to sue the officer in such case, pending the attachment ; but it was intimated that the attachment plaintiff might show his interest in the recov- ery, and that the court would thereupon order a stay of execu- tion till the creditor's rights were determined, or might require the money to be paid into court to be held for the benefit of the creditor, if he should finally recover.^ § 308. In an action by the attachment defendant against the officer, for having lost or wasted a portion of the property, the latter may excuse himself from liability by showing that he had applied the amount to the defendant's use, by paying with it the expenses of keeping the property,^ or by satisfying with it other executions against the defendant.^ § 309. Where an officer fails to keep attached property to an- swer the execution, there is no reason why he should be subjected to a different rule of damages from that which prevails in actions generally, against officers for neglect or failure of duty ; that is, the actual injury sustained by the plaintiff by reason of the neg- 1 McKay v. Harrower, 27 Barbour, * Twombly v. Hunnewell, 2 Maine, 4(53. 221. 2 Bailey v. Hall, 16 Maine, 408. ^ Bennett v. Brown, 31 Barbour, 158; * Briggs V. Taylor, 35 Vermont, 57. 20 New York, 99. 19 [289] § 311 CUSTODY OP ATTACHED PROPERTY. [CHAP. XII. lect or failure. The value of the property attached, if less than the amount of the plaintiff's judgment, or the amount of the lat- ter, where the value of the property is greater, will generally be prima facie the measure of damages, subject to be mitigated by evidence produced by the officer.^ Therefore, where a number of successive attachments were laid on property ; and all the plaintiffs, except him whose writ was last levied, believing that the property would lessen in value, and that the proper season for selling it would be lost, if it should be kept until final judg- ment could be obtained, directed the officer to sell it, and hold the proceeds to satisfy the judgments to be recovered, in the order of their respective attachments ; and the defendant assented to the sale, which took place ; and a greater sum was produced than would have been, if the property had been kept and sold upon execution, but not sufficient to satisfy all the attachments ; and the last attacher got nothing, and brought suit against the officer ; it was held, that, though he had departed from the line of official duty, and the plaintiff was, therefore, entitled to recover dam- ages, yet, as the plaintiff would have got nothing if the officer had performed his duty, nominal damages only could be recov- ered.2 But an officer is not entitled to have a reduction made from the full value of the property, in mitigation of damages, for the expenses which inight have attended the keeping, had it been kept safely.^ § 310. If an officer state in his return the value of property attached, we have seen that he is ijrimd facie bound by it, and the burden is on him to sliow that the valuation was incorrect.* When sued for not having the property forthcoming on execution, if there be no other evidence of value than that furnished by the return, the officer will be concluded by it ;^ and so, it seems, if it should appear that the plaintiff relied upon the return, and was thereby led to abstain from efforts to get further security.^ § 311. As to the matter of expenses attending the keeping of attached property, there can be no doubt that the general prin- 1 Sedgwick on Damages, 539-543. * Aute, § 206. •■« Ricli ('. Bell, K) Mass. 294. » French v. Stanley, 21 Maine, 512. 8 Lovejny V. Hutcliins, 2:;; Maine, 272 ; ° Allen v. Doyle, uO Maine, 420. Tyler v. Ulmer, 12 Mass. 103; Sewall v. Mattoon, 9 Ibid. 535. [290] CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 311 ciple is, that where an officer is required to perform a duty iuvolving disbursements of money out of his pocket, he must be reimbursed. When personal property is attached, it is to be kept by the officer at the expense of the defendant. If the defendant be unwilhng to incur this expense, he must replevy it, or procure it to be receipted. If the officer afterwards receives an execution, he sells the property, and out of the proceeds takes his paj' for the expense of keeping, and applies the remainder on the execution. 1 Thus the defendant pays for the keeping. If the defendant settles the debt with the plaintiff, so that no execution comes into the officer's hands, on which to make a sale, the officer may sustain an action against the defendant for the expense of the keeping; 2 but he has no such lien on the property as will enable him, under such circumstances, to hold it for the payment of such expense.^ If the property be sold by the officer, and thereafter the defendant satisfy the attachments, that will not deprive the officer of the right of retaining the expense of keep- ing out of the money in his hands.* If there should be a judg- ment for the defendant, or the suit be dismissed, the plaintiff will be liable for the expenses.^ It was held in Vermont, that if the officer use the property — as, for instance, a horse — sufficiently to pay for its keeping, he cannot make the plaintiff pay for such keeping,^ 1 Hanuess v. Smith, 1 Zabriskie, 49.5 ; * Gleason v. Briggs, 28 Vermont, 135. Dean r. Bailey, 12 Vermont, 142; Mc- ^ Plielps r. Campbell, 1 Pick. 59; Tar- Keil V. Bean, 32 Ibid. 429. bell r. Dickinson, 3 Cusliing, 315. 2 Dean v. Bailey, 12 Vermont, 142; ^ Dean v. Bailey, 12 Vermont, 142; Sewall V. Mattoon, 9 Mass. 5-35. Atite, § 203. 3 Felker v. Emerson, 17 Vermont, 101. [291] § 313 a BALL AND DELIVERY BONDS. [CHAP. XIII CHAPTER XIII. BAIL AND DELIVERY BONDS. § 812. I. Bail Bonds. In many of the States, provisions exist for the dissolution of an attachment, upon the defendant giving bond, with approved security, for the payment of such judgment as may be recovered in the attachment suit. This is, in effect, merely Special Bail, and was so regarded in Mississippi, where it was held, that the abolishment by law of imprisonment and bail for debt abolished the right to take such a bond in an attachment suit.^ In some States, as under the custom of London, the de- fendant is not allowed to plead to the action until he has given such a bond ; but generally he may appear without it. § 312 a. A bond of this description, given by a defendant in a case in which no attachment was issued, is unauthorized by law, and no judgment thereon can be rendered against the parties there to.2 § 313. It is the defendant's right to give this bond at any time before judgment, as well where his effects are reached by gar- nishment, as where levied on and taken into the officer's posses- sion.^ This right is a privilege accorded by law to, and not a duty enjoined upon, the defendant, and the plaintiff cannot com- plain if it be not exercised.^ And it is his privilege alone ; unless the statute authorize such bond to be given by a third party .^ § 313 a. To uphold such a bond, as against the sureties, it is not necessary to insert therein any consideration, or, in an action on the bond, to prove any. It is a statutory obligation for which no consideration is necessary.^ 1 Garrett v. Tinnen, 7 Iloward (Mi.), " Leccsne v. Cottin, 10 Martin, 174. 465. See Cliildress v. Fowler, 9 Arkan- * Watson v. Kennedy, 8 Louisiana An- Bas, 15'J ; Gillaspie v. Clark, 1 Tennes- nual, 280. see, 2. ^ Kling v. Childs, .30 Minnesota, 366. 2 Williams v. Skipwith, S4 Arkansas, 6 BiUlcrsee v. Aden, 62 Barbour, 175; 529 12 Abbott Pract. n. s. 324. [292] CHAP. Xlir.] BAIL AND DELIVERY BONDS. § 316 § 313 h. In some States this bond is made in favor of the offi- cer who executes the attachment. In the United States District Court for Wisconsin, under a statute of that State adopted by that court, a bond was given to the marshal or his successor in office ; and the Supreme Court of the United States held, that it might be sued on, either by the marshal to whom it was given, after he had ceased to be marshal, or by his successor in office. ^ § 314. In taking this bond the officer is not to be regarded as the agent of the plaintiff, so as to render the plaintiif responsible for his neglect of duty. Therefore where the officer, without levying the attachment, suffered the defendant, without the plaintiff's knowledge, to execute a bond, with surety, to pay the debt ; which was considered not to be in conformity to the stat- ute governing the case ; the court regarded the officer as rather the agent of the obligors in the bond, and held that the plaintiff was entitled to his recourse on the bond as a good common-law bond, and that the obligors, if injured by the act of the officer, should look to him for redress.^ § 314 a. If the terras of the bond be in substantial compliance with the statute, it is sufficient, where the statute does not pre- scribe the form of the instrument.^ § 315. Where an attachment issues against two joint debtors, and their joint and separate effects are attached, it was held by the United States Circuit Court of the District of Columbia, that one oT them could not appear and give bail to discharge his separate effects, unless bail and appearance were entered for both.4 § 316. If the statute requires more than one surety, and only one is given, the obligors, when sued on the bond, cannot object to its validity on that account ; for the plurality of sureties is for the benefit of the creditor, and he may dispense with more than one, without invalidating the instrument.^ 1 Huff v. Hutchinson, 14 Howard Sup. * Magee v. Callan, 4 Cranch, C. C. 251. Ct. 586. 5 Ward v. Whitney, 3 Sandford, Sup. 2 Coolc V. Boyd, 16 B. Monroe, 556. Ct. 399; 4 Selden, 442. 3 Curiae v. Packard, 29 California, 194. [293] § 317 BAIL AND DELIVERY BONDS. [CHAP. XIII. 316 a. If there be no statute authorizing it, the court has no power to order new sureties to be given in such a bond, on the ground that those first taken have become insolvent. The Law is complied with by the giving of the bond, without reference to the subsequent ability of the sureties to respond to its obligation. ^ § 316 h. Where the execution of such a bond was resorted to to discharge a garnishee, and afterwards, while the suit was pend- ing, the defendant and the surety in the bond both became insol- vent, and the plaintiff obtained a second attachment in the suit, and sumiuoned the garnishee again ; the second garnishment was sustained.^ § 317. In Pennsylvania, Ohio, Kentucky, Ilhnois, Mississippi, Arkansas, and Texas, from the time of the execution of the bond, the cause ceases to be one of attachment, and proceeds as if it had been instituted by summons ; ^ and in South Carolina and Georgia, where the statute does not declare that the execution of the bond shall have the effect of dissolving the attachment, it is held, nevertheless, that it has that effect.^ In Louisiana, Article 259 of the Code of Practice is as follows: "The defend- ant, if he appear, either in person or by his attorney, may, in every stage of the suit, have such attachment set aside, by de- livering to the sheriff his obligation for the sum exceeding by one-half that which is demanded, with the surety of a good and solvent person, residing within the jurisdiction of the court where the action is brought, that he will satisfy such Judgment as may be rendered agahist him in the suit pending." Under this provision it was held, that a defendant executing the obliga- tion, rendered himself liable to a judgment in personam, whether he was served with process or not.^ But under some attachment systems this bond may be given 1 Dudley V. Goodrich, 10 Howard 4fiS ; Hill f. Harding, 03 Ibid. 77 ; Pliilips Pract. 189; Hartford Quarry Co. v. Pen- v. Hines, 03 Mississippi, 1G3; Morrison v. dleton, 4 Abbott Pract. 460. Aipliin, 23 Arkansas, 130 ; Shirley v. 2 Stewart v. Dobbs, 3!) Georgia, 82. Byrnes, 34 Texas, 625. 8 Fitch V. Ross, 4 Sergeant & Kawle, ^ Fife r. Clarke, 3 McCord, 347 ; Pcy- 557; Albany City Ins. Co. v. Whitney, nolds r. Jordan, 19 Georgia, 430. See 70 Penn. State, 248; Parker r. Farr, 2 McMillan r. Dana, 18 California, 339. Browne, 331 ; Myers v. Smith, 29 Ohio ^ Rathbone v. Ship London, Louisi- State, 120; Harper v. Bell, 2 Bibb, 221 ; ana Annual, 439; Kendall ;•. Brown, 7 People V. Cameron, 7 Illinois (2 Oilman), Ibid. 068 ; Love v. Voorhies,-13 Ibid. 549. [294] CHAP. Xm.] BAIL AND DELIVERY BONDS. § 318 by third persons, without the joinder of the defendant with them ; and in such case their execution of the bond is neither in fact nor in law an appearance by the defendant to the action, nor does it authorize the supposition that he had any knowledge or notice of it, or any opportunity to appear and defend it.^ § 318. In Mississippi, the court seemed to consider that the execution of the bond released any technical objections to the pre- liminary proceedings ; 2 while by the Supreme Court of the United States, and those of Missouri aud Wisconsin, it was held, that tliereafter the defendant could not take any exception to the attachment, or to the regularity of the proceedings under it; ^ and by that of Illinois, that he could not plead in abatement traversing the grounds of attachment alleged in the affidavit.* In Louisiana, however, a different rule prevails. There, under the statute cited in the next preceding section, when property is seized under an attachment, and the defendant is not served with process, the court is required to appoint an attorney to represent him ; and it was held, to be admissible for the attorney so appointed, to show that the property attached was not the defendant's, and that, therefore, the court had no jurisdiction of the action.^ Afterwards, it was decided that the defendant him- self, after giving bond, might contest the truth of tlie allegation on which the attachment issued, in order to procure the dissolu- tion of the attachment ; and this expressly on the ground that it was necessary to relieve himself and his surety from the obli- gation of the bond.*^ And tlie court further decided that the obligors in a bond of this description, to zvliich the attachment defendant ivas not a party, might, when sued upon it, set up as a defence, that the property was not the defendant's, and that he had not been served with process, and that therefore, the judg- ment against him was a nullity .^ And in Arkansas it was held, that the execution of the bond did not preclude the defendant 1 Clark V. Bryan, 16 Maryland, 17L 5 Schlater v. Broaddus, 3 Martin, n. s. 2 Wharton v. Conger, 9 Smedes & Mar- 321 : Oliver i'. Gwin, 17 Louisiana, 28. shall, 510. 6 Paihles v. Eonx, 14 Louisiana, 82 ; 3 Barry v. Foyles, 1 Peters, 311 ; Huff Myers v. Perry, 1 Louisiana Annual, 372; V. Hutchinson, 14 Howard Sup. Ct. 586; Kendall v. Brown, 7 Ibid. G68. See Bates Payne v. Snell, 3 Missouri, 409; Dierolf v. Killian, 17 South Carolina, 553. V. Winterfield, 24 Wisconsin, 143. ^ Quine v. Mayes, 2 Robinson (La.), * Hill V. Harding, 93 Illinois, 77. 510; Bauer r. Antoine, 22 Louisiana An- nual, 145 ; Edwards v. Prather, Ibid. 334. [295] § 319 BAIL AND DELIVERY BONDS. [CHAP. XIII. from interposing pleas in abatement founded on irregularities in the proceedings.^ And the Circuit Court of the United States for the Eastern District of Arkansas, following the lead of the Supreme Court of that State, held that the execution by an attachment defendant of a bond conditioned to " perform the judgment of the court,"' did not estop the defendant from trav- ersing the affidavit on wljich the attachment was issued, and defending against the attachment in every respect as if such bond had not been executed, and the property remained in the hands of the officer ; and that if the attachment is not sustained, the plaintiff, though he recover judgment for his debt, cannot resort to the bond to compel payment of the judgment.^ § 319. In New York, a similar view was entertained, in an ac- tion on a bond, conditioned to pay the plaintiff in the attachment the amount justly due and owing to him by the defendant, at the time the plaintiff became an attaching creditor, on account of any debt claimed and sworn to by the plaintiff, with interest, costs, etc. The action was against the surety in the bond, and the dec- laration set forth the affidavit on which the attachment issued, the issuinn- of the writ, the attachment defendant's application to the judge to discharge the warrant, and that, for the purpose of procuring such discharge, the bond sued on was executed ; and concluded with an averment of the indebtedness of the attach- ment defendant to the plaintiff. The question presented was, whether the affidavits on which the attachment issued were suffi- cient to authorize the issuing of the writ. It was decided that they were not, and therefore, that the proceedings in the attach- ment were void; and such being the case, that the bond was also void.^ This case was under the Revised Statutes of New York, where the affidavit for an attachment was the foundation of the jurisdic- tion ; and the impeachment of its sufficiency assailed the jurisdic- tion of the court in the attachment suit. The decision was, that, as there was no jurisdiction of the suit, the bond could not be enforced. But where, as under the New York Code of Procedure, tlie 1 Childress v. Fowler, 9 Arkansas, 159 ; " Carlwcll v. Colgate, 7 Barbour, 253. Delano v. Kennedy', 5 Ibid. 457. See Egan v. Lumsden, 2 Disney, 1G8 ; 2 Lehman v. Berdin, 5 Dillon, 340. Bildersee v. Aden, 62 Barbour, 175. [206] CHAP. Xni.] BAIL AND DELIVERY BONDS. § 320 attachment is not process by which the suit is commenced, but merely a provisional remedy, it was held, that the statements in the affidavit on which it issued are not jurisdictional facts ; that the attachment is not void if those statements are insufficient; and that therefore the sufficiency and truth of those statements cannot be inquired into in an action on a bond given to secure the pay- ment of such judgment as might be recovered in the action in which th& attachment was issued. ^ Much less can the attach- ment defendant, in an action on such bond, object to the regu- larity of the proceedings in the attachment suit;^ or to the regularity or merits of the judgment against the defendant; or to an amendment of the complaint by introducing an additional defendant.^ In California, in an action on such a bond, no proof is neces- sary of the preliminary proceedings connected with or preceding the levy ; for the admission of the levy, contained in the bond, is enough.^ § 320. Bat in a suit on such a bond, is the plaintiff bound, as was done in the case just cited, to show in his declaration, or otherwise, the facts necessary to give jurisdiction to the officer who issued the attachment, or that the case was one in which an attachment might be issued according to the statute ? This ques- tion was passed upon by the New York Court for the Correction of Errors, in the negative. Chancellor Walworth, in deliver- ing his opinion, which was almost unanimously sustained by the court, said : " I am not aware of any principle of the common law which requires the obligee in such a bond, when he brings a suit thereon against the obligors, to do anything more in his declara- tion than to state the giving of the bond by the defendants, and to assign proper breaches of the condition to show that the bond has become forfeited ; and to enable the jury to assess the dam- ages upon such breaches, as required by the statute relative to suits upon bonds other than for the payment of money. And where the execution of the bond is admitted or proved upon the trial, and the breach of the condition thereof is also proved, the onus of establishing the fact that the bond was improperly ob- 1 Cruyt V. Phillips, 16 Howard Pract. ^ Christal v. Kelly, 31 Xew York Su- 120. preme Ct. 155. '^ Dunn V. Crocker, 22 Indiana, 324. < McMillan v. Dana, 18 California, 339. [297] § 322 a BAIL AND DELIVERY BONDS. [CHAP. XIIL tained, by coercion or otherwise, as by an illegal and unauthorized imprisonment of the defendants, or in consequence of an illegal detention of their goods under color of an attachment granted by an officer who had no authority to issue the same, is necessarily thrown upon them." ^ § 321. In Louisiana, under the article above quoted, ^ it is held, that after the giving of such a bond, the property attached is no longer under the control of the court. There, cotton was at- tached, and released on a bond being given ; and afterwards a' third party intervened and claimed the cotton to be his ; but the court refused to hear evidence or entertain the intervention. The Supreme Court sustained this decision, holding the property to be no longer under the control of the court ; that the bond was a substitute for the property ; and that the intervener must look to the property itself.^ § 322. Such bond is available to the plaintiff only, for the satis- faction of such judgment as he may obtain against the defendant. If he fail to obtain a judgment, the bond is disdiarged. Third parties, claiming the attached property, can have no recourse upon the bond, there being no privity between them and the obligors.* And the judgment obtained against the defendant, ivliere he is not a pai'ty to the bond, must be a valid judgment, in order to sustain an action on the bond. If the judgment be taken without any jurisdiction in the court, no action can be maintained on the bond for its satisfaction.^ § 322 a. In order to a recovery upon such a bond it is not necessary that the judgment against the defendant in tlie attach- ment suit should express that it is with privilege on the property attached. The obligors undertake to pay a7ij/ judgment which may be recovered against the defendant; and as the execution of the bond authorizes a personal judgment against him, it is not 1 Knnonse v. Dormedy, 3 Denio, 5G7. Sec ]\Tnnroe v. Cutter, 9 Dana, 93; Mc- 2 Ante, § 317. Millan i-. Dana, 18 California, 339. 8 Dorr V. Kershaw, 18 Louisiana, 07 ; •• Dorr v. Kershaw, 18 Louisiana, 67; Beal V. Alexander, 1 IJoblnson (La.), Beal r. Alexander, 7 HoMnson (La.), 349. 277; Benton v. Koberts, 2 Louisiana An- ^ Clark v. Bryan, IG Maryland, 171. nual, 243 ; McRae v. Austin, 9 Ibid. 360. [298] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 323 requisite that the judgment should make reference to the attach- ment, in order to give a right of action on the bond.^ § 322 h. If a bond be given with condition in the alternative, for the payment of the debt, or for the value of the property, the sureties are not entitled to have a judgment upon the bond re- stricted to the value of the property, but they must pay the debt, interest, and costs.^ And where the bond stated that it might be satisfied by production of the property, or in case that should not be done, then that it might be satisfied by payment of the judgment ; and the obligors declined to do either of those things, but offered to pay the value of the property ; it was held, that they were bound to pay the judgment.^ § 323. The obligation of the bond cannot be discharged by a surrender of the property attached.'* Nor can the obligors, when sued thereon, defend themselves by showing that no attachment was issued ; ^ or that the property was not the defendant's when it was attached ; "^ or that it was not subject to attachment ; '' or that no property was attached ; ^ or that the grounds for obtain- ing the attachment were insufficient;^ or that the judgment against the defendant was erroneous ; ^*^ or that the sureties were induced to execute it by fraud of their principal, unless the attachment plaintiff be connected with the fraud.^^ Nor are they discharged by the arrest and commitment of the defendant under a ca. sa. issued by the plaintiff, in the same action, after the con- dition of the bond is broken. ^^ Nor can they object to the amount of the judgment recovered in the original suit.^^ Nor will it avail 1 Love V. Voorliies, 13 Louisiana An- property by a third party coukl not be nual, 549. investigated. Taylor i". Taylor, 3 Bush, - Bond V. Greenwold, 4 Heiskell, 453; 118. Barry c Frayser, 10 Ibid. 208. 7 McMillan v. Dana, 18 California, 339 ; 3 Goebel v. Stevenson, 35 Michigan, Bacon v. Daniels, 116 Mass. 474. 172. 8 Frost I-'. White, 14 Louisiana Annual. ■* Dorr V Kershaw, 18 Louisiana, 57. 140. 5 Coleman v. Bean, 32 Howard Pract. » Hazelrigg v. Donaldson, 2 Metcalfe 370; 14 Abbott Pract. 38; 1 Abbott Ct. (Ky.), 445;"'lnman v. Strattan, 4 Bush, of Appeals, 394. 445 ; Bildersee v. Aden, 62 Barbour, 175. 6 Beal V. Alexander, 1 Robinson (La.), i" Barry v. Frayser, 10 Heiskell, 206. 277 ; Hazelrigg v. Donaldson, 2 Metcalfe " Coleman v. Bean, 14 Abbott Pract. (Ky.), 445. See Bacon v. Daniels, 116 38; 1 Abbott Ct. of Appeals, 394. Mass. 474. In Kentucky it was also held, 12 Murray v. Shearer, 7 Gushing, 333. that after the giving of such a bond no i3 Morange v. Edwards, 1 E. D. Smith, inquiry as to the property attached was 414. pertinent, and therefore a claim of the [299] § 323 h BAIL AND DELIVERY BONDS. [CHAP. XIII. them as a defence, that, after judgment and execution were obtained against the defendant, they pointed out to the plaintiff propert}' of tlie defendant, out of whicli he could make his claim, and at the same time tendered him money to defray the expenses and charges of the proceeding.^ Where obligors in such a bond were sued thereon, and defended themselves upon the ground that an appeal had been praijed and allowed from the judgment in the attachment suit, it was held to be no defence, and that it should have been shown that the appeal was pending and undetermined? In Georgia, where an attachment was levied on slaves, who were delivered back to the defendant, upon his giving bond, with security, to " pay the said plaintiff the amount of the judgment and costs that he may recover in said case ; " and the slaves were afterwards emancipated by the 13th Amendment to the Consti- tution of the United States ; it was held, that the bond was not to deliver the property, but to satisfy the judgment recovered ; that the rights of the parties became fixed by the execution of the bond, and the return of the slaves by the sheriff to the defendant ; and that their emancipation did not discharge the obligation of the bond.^ § 323 a. When a judgment is recovered against the surety in such a bond, he has a right to tender to the plaintiff the full amount of the judgment ; and if the plaintiff refuses to receive the same, the surety is discharged from his obligation on the bond.'' 323 h. As a bond of this description is for the payment of such judgment as the plaintiff may recover against the defendant in the attachment suit, if the defendant be discharged in bankruptcy, and plead his discharge before judgment, and thereby no judg- ment is or can be rendered against him, the sureties in the bond are released from its obligation.^ But the defendant's bank- ruptcy after judgment rendered against him iii the attachment suit^ will not have that effect.^ In New York, the courts refused leave 1 Hill V. Mcrlo, 10 Louisiana, 108. Hamilton v. Bryant, 114 Ibid. 543; Payne 2 Potcet V. Boyd, 10 Missouri, IGO. v. Able, 7 Bush, 344. 8 Irvin V. Howard, 37 Georgia, 18. ^ McCombs v. Allen, 25 Now York 4 Hayes i\ Joscplii, 20 California, 535. Supreme Ct. 190 ; affirmed in 82 New c Carpenter v. TurrcU, 100 Mass. 450; York, 114. [300] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 325 a to a defendant to file a supplemental answer setting up his dis- charge in bankruptc}-, because it would deprive the attachment plaintiff of a fair and honest advantage he had obtained by dil- igent pursuit of legal means and remedies.^ § 324. In Arkansas it is held, that the sureties may be sued without issuing execution against the principal. It is sufficient to aver the judgment against him, and its non-payment.^ § 325. Where there are several defendants, and the obligation of the bond is for the payment of any judgment recovered against them, it would seem that the sureties could not be made liable for a judgment recovered against them, or a part of them, joined with a new defendant, introduced after the execution of the bond ; and it might be doubtful whether they could be charged for a judgment recovered against only a part of the defendants, where the defendants remained the same. But where the obli- gation is to pay such judgment as the plaintiff may recover in the suit in which the bond is given, and on the trial he recovers only against a part of several defendants, and fails to recover against the rest, the sureties are bound for that judgment ; ^ but if, by the plaintiff's act, without the assent of the sureties, a change is made in the defendants against whom judgment is obtained, either by discontinuing as to some, and the bringing in of others,^ or by discontinuing as to some and taking judgment against the rest,^ the obligation of the sureties is discharged. 325 a. On the principle governing in the cases cited in the preceding section, a change in the plaintiffs, without the consent of the sureties in the bond, will discharge the liability of the lat- ter. Thus, where a bond was given in an action in favor of A. as surviving partner, and B. as administrator of the deceased partner, and afterwards the suit was discontinued as to the latter, and an amended complaint in favor of the former alone was filed, under which a judgment was rendered in his favor against the 1 Holyoke v. Adams, 8 New York Su- ^ Leonard v. Speidel, 104 Mass. 3-56. preme Ct. 223; affirmed in 59 New York, * Tucker v. White, 5 Allen, 322 ; Rich- 233. ards v. Storer, 114 Mass. 101. 2 Lincoln v. Beebe, 11 Arkansas, 697; ^ Andre i'. Fitzlmgh, 18 IMichigan, 93; Chrisman v. Rogers, 30 Ibid. 351. Harris v. Taylor, 3 Sneed, 536. [301] § 327 BAIL AND DELIVERY BONDS. [CHAP. XIII. defendant ; it was held, that the change in the plaintiffs dis- charged the obligation of the bond.^ § 32G. In Louisiana, a case arose, not strictly of the nature of those we are now considering, but bearing such resemblance to them as to be properly noticeable here. A steamboat, owned by several persons, was attached for the debt of one of the owners. The other owners, to relieve the boat from the attachment, came forward and filed their claim for the three-fourths of the vessel, offering at the same time to give security to account for such part as should be found to belong to the defendant upon a final adjust- ment of their respective claims and accounts, upon a due appraise- ment and sale of the interest and share of the defendant ; and the court ordered the boat to be delivered to them, on their exe- cuting bond, with security, " to abide the judgment of the court in the premises." Judgment was rendered against the defend- ant, only a part of which was satisfied out of the proceeds of the sale of his share in the boat, and the plaintiff sued the parties to the bond to recover the balance. But the court decided, that the bond must be understood in relation to their obligation to account for the share of their co-proprietor ; and that, should it remain doubtful, from the manner in which the order of the court and the bond were worded, whether the obligors intended anything more than making themselves responsible for the share of the defendant, justice commanded to put upon the bond the most equitable construction, and to reject an interpretation which would tend to make them pay the defendant's debt, not only out of his share, but out of their own.^ § 327. II. Deliver?/ Bonds. This description of instrument is variously styled Delivery, Forthcoming, or Replevy Bond ; ^ and on its execution the attaching officer yields the actual possession 1 Quillen v. Arnold, 12 Nevada, 234. tion of lien or no lien depends more upon 2 Nancarrow v. Younfr, G Martin, GC2. the nature of tlie stipulations entered into 8 In McKae v. McLean, 3 Porter, 138, in the bond, than upon the particular Hitchcock, J., said in delivering the circumstances wJiich may attend the case, opinion of the court : " The term rpplevi/, All our injunction and writ of error bonds in its general sense, includes every return arc replevy bonds; yet there is no lien of projjcrty levied on, for wliatever cause retained on tiie property attached, the and under whatever conditions the same conditions being to pay and satisfy the may be subject to, whether the lien is judgment or decree of the court whenever continued or discharged ; and tire qucs- made." [302] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 328 of the attached property to the principal in the bond. It is usu- ally conditioned for the delivery of the property to the officer, either to satisfy the execution which the plaintiff may obtain in the cause, or when and where the court may direct. Sometimes the alternative is embraced, of the deliver}' of the property or the satisfaction of the judgment recovered in the action. Such a bond is no part of the record in a cause, and cannot be looked to, to explain or contradict the sheriff's return.^ § 327 a. Though a bond of this description be given where not authorized by statute, or in terms variant from those prescribed, yet it is not therefore necessarily invalid ; but it will be good as a common-law bond, where it does not contravene public policy, nor violate a statute.^ And so, where it is given to the officer who levied the attachment, when the law required it to be given to the attaching plaintiff.^ § 327 h. It seems that this bond may be taken, as well where the attachment is served only by garnishment, as where tangible property is levied on. It was so held in Iowa, under a statute in these words : " The defendant may at any time before judgment discharge the property attached, or any part thereof, by giving bond, with surety to be approved by the sheriff, in a penalty at least double the value of the property sought to be released, con- ditioned that such property, or its estimated value, shall be deliv- ered to the sheriff, to satisfy any judgment which may be obtained against the defendant in that suit, within twenty days after the rendition thereof." ^ § 328. No set form of words is necessary to make a valid bond of this description. Therefore, where a writing was given, in the nature of a condition to a penal bond, though no bond pre- ceded the condition, it was held to be sufficient, on the following grounds : " It states what act, if performed, shall have the effect of rendering the supposed bond void. It implies an agreement 1 Kirksey v. Bates, 1 Alabama, 303. Whitsett v. Womack, 8 Alabama, 466 ; 2 Sheppard v. Collins, 12 Iowa, 570. Palmer v. "Vance, 13 California, 553; See Morse v. Hodsden, 5 Mass. 314 ; Smith v. Fargo, 57 Ibid. 157 ; Turner v. Barnes v. Webster, 16 Missouri, 258; Armstrong, 9 Bradwell, 24. Waters v. Kiley, 2 Harris & Gill, 305 ; 3 Agnew v. Leath, 63 Alabama, 345. Johnson v. Weatherwax, 9 Kansas, 75 ; * Woodward v. Adams, 9 Iowa, 474. [303] § 329 a BAIL AND DELIVERY BONDS. [CHAP. XIII. on the part of the obligors for the performance of that act. It in effect stipulates that the property attached shall be forth- coming when ordered by the court to be returned to its custody. It shows that a duty had devolved on the persons executing the instrument, and imports an undertaking for the performance of that duty. Although it is unskilfully drawn, and has omitted an essential part of all penal obligations, yet we think an action of covenant can be maintained upon it. Any other construction would violate the obvious intention and understanding of the parties." ^ § 329. The addition to the bond of terms not required by law will not vitiate it, nor bar the prescribed remedies on it. Thus, where the statute required a bond" conditioned that the property shall be forthcoming to answer the judgment that may be ren- dered in the suit ; " and the bond given, after reciting the attach- ment, and that the obligors claimed to be the owners of the property attached, was conditioned that " if the obligors should fail to substantiate their claim and should render up and have forthcoming the property," etc. ; it was held, that the addition, " if the obligors should fail to substantiate their claim," did not affect the character of the bond, and that it might be proceeded on in the same manner as if that addition had not been made.^ § 329 a. An interlineation in the bond, made after signing by the surety, and without his knowledge or consent, and not made with any wrong or fraudulent intent, but in good faith, and giving no advantage nor working any injury to anybody, will not discharge the surety from liability thereon. Thus, where after the surety signed a delivery bond reciting that the sheriff " did attach the furniture and photographic outfit of" the defendant; and the attachment plaintiff, at the request of the defendant, for the purpose of identifying the property attached, interlined in the bond the words " consisting of six sofa-chairs, one settee, one round table, one clock, one mirror, one show-case, one piece of carpet containing forty-nine yards, twenty large pictures and frames, and one half-size camera ; " which was the same property 1 Yocum V. Barnes, 8 B. Monroe, 40G. ^ PurcoU v. Steele, 12 Illinois, 93 ; Sheppard v. Collins, 12 Iowa, 570. [304] CHAP. XIII.] BAIL AND DELIVERY BONDS. oo-i returned by the sheriff as attached ; it was held, that the legal effect of the bond was not changed by the interlineation.^ § 330. This bond differs from the contract of bailment of at- tached property, prevalent in New England and New York, to be treated of in a subsequent chapter, — 1. In deriving its exist- ence from statute, and not from practice ; 2. In being a specialty, instead of a simple contract ; 3. In the officer being under legal obligation to release the property from actual custody, upon suf- ficient security being given ; 4. In discharging the officer from liability for the property, at least unless he were guilty of impro- priety in taking insufficient security ; 5. In being recognized and proceeded upon in the courts as a part of the cause ; and 6. In being a contract which the plaintiff may enforce for the satisfac- tion of his judgment. § 331. It differs, too, from a bail bond, in that it does not dis- charge the lien of the attachment ; since the very object of the bond is to insure the safe keeping and faithful return of the property to the officer, if its return should be required.^ It fol- lows, therefore, that after property is thus bonded, it cannot be seized under another attachment, or under a junior execution, either against the attachment debtor, or against a third person claiming it adversely to the debtor and the creditor ; for to hold otherwise would put it in the power of a stranger to the attach- ment suit, by a levy and sale, to cause a forfeiture of the condition of the bond.3 And this, too, though the party giving the bond take the property into another State ; for he is considered to 1 Rowley v. Jewett, 56 Iowa, 492. 6 Alabama, 45; Conlaman v. Malone, 63 2 Gray i;. Perkins, 12 Smedes & Mar- Ibid. 556 ; Kane v. Pilclier, 7 B. :Monroe, shall, 622; McPiae v. McLean, 3 Porter, 651; McKinney v. Purcell, 23 Kansas, 138 ; Eives v. Wilborne, 6 Alabama, 45 ; 446. In Jones r. Peasley, 3 G. Greene, Kirk V. Morris, 40 Ibid. 225 ; Wooltblk v. 53, it was held by the Supreme Court of Ingram, 53 Ibid. 11; Cordaman v. Ma- Iowa, that a bond conditioned " that the lone, 63 Ibid. 556; Evans v. King, 7 Mis- attached property, or its appraised value, souri, 411 ; Jones v. Jones, 38 Ibid. 429; shall be forthcoming to answer tlie jtidg- People V. Cameron, 7 Illinois (2 Gilman), ment of the court," discharges the prop- 468; Gass v. Williams, 46 Indiana, 253 ; erty from the lien of the attachment, and Boyd V. Buckingham, 10 Humphreys, leaves it subject to a subsequent attach- 434 ; AUerton v. Eldridge, 56 Iowa, 709 ; ment for the defendant's debts, and that Hilton V. Pioss, 9 Nebraska, 406. Sed the obligors cannot defend against the con^j-a, Schuyler f. Sylvester, 4 Dutcher, bond, because the property was subse- 487 ; Austin v. Burgett, 10 Iowa, 3)2. quently attached by other creditors. 3 Ante, §§ 251, 267; Eives v. Wilborne, 20 [305] § 333 a BAIL AND DELIVERY BONDS. [CHAP. XIII. have a qualified property in the thhig, which the courts of every State must respect, wherever acquired. ^ § 332. By executing such a bond, the defendant is held to have acknowledged notice of the suit, and to be bound to enter an appearance, or be liable to be proceeded against as in case of ■personal service of process;^ and the execution of the bond is sufficient presumptive evidence that the property was found by the sheriff in the possession of the defendant.^ And when, as is in some States authorized, a person not a party to the suit re- plevies the property, he by that act introduces himself to the suit, and becomes, though not a technical party, yet a party to the proceedings ; and being in the possession of property which is in the custody of the law, he is within the legitimate reach of proper action, by the court in which the suit is pending, in regard to the property.^ But the giving of such a bond is not an ac- knowledgment that the writ was rightfully issued. ^ § 333. This bond cannot be executed, so as to constitute an effective and reliable security to the officer or the plaintiff, by any party not thereto authorized by law. If executed by one not so authorized, it will not be sustained, either as a statutory or common-law bond.^ § 333 a. The execution of a bond of this description, by a person other than the defendant, is authorized in some States. Where so executed, what is the relation of the party executing it to the defendant? This question came up in Alabama, under a statute authorizing personal property taken in attachment to be replevied by the defendant, " or, in his absence, by a stranger." The word " stranger " was considered to mean a person not a party to the suit, who acts for the benefit of the defendant; and it was held, that in providing for a replevy by a stranger, it was not intended to restrict or impair the defendant's right as to the 1 Gordon r. Johnston, 4 Louisiana, 304. ■♦ Kirk v. Morris, 40 Alabama, 225. 2 Wilkinson »-•. Patterson, 6 Howard ^ ^^Vvet v. Albo, 21 Louisiana Annual, (Mi.), 193; Richard i'. Mooncy, 39 Mis- 349. Bissippi, 357 ; Blyler r. Kline, 04 Penn. " Cummins v. Gray, 5 Stewart & Por- State 130 ; Peebles v. Weir, GO Alabama, ter, 397 ; Sewall v. Pranklin, 2 Porter, 410. ' 493. 8 Hoshaw V. Gullett, 53 Missouri, 208. [30G] CHAP. Xril.] BAIL AND DELIVERY BONDS. § 334 possession of the property when replevied ; that the defendant has the right to demand of the stranger the possession of it ; that on such demai-id being made, it is the duty of the stranger, either to restore the property to the defendant, or to return it to the sheriff; and that his bond is subject to such rules as would gov- ern it if made by the defendant himself.^ And afterwards, in the same State and under the same statute, where trover wa>i brought against the replevying " stranger," he was considered as holding under the defendant, and entitled to make all defences which the defendant could have made if he had been sued.^ And in the same State it was held, that by the execution of the replevy bond the stranger so far connects himself with the attach- ment suit, that he must take notice of the judgment therein ren- dered, and cannot, while retaining the goods under the bond, dispute or deny the title of the defendant. Even if the title resides in the stranger, and the defendant is without an attach- able interest therein, this will not excuse the former from per- formance of the condition of the bond. He must redeliver the goods to answer the levy of the writ, after which he may inter- pose a claim for them.^ § 884. Where the bond calls for the delivery of the property at a specified place, no demand is necessary.* When the prop- erty is to be delivered " when and where the court shall direct," an order of court for its delivery is necessary to render the obli- gors liable. The judgment of the court against the defendant in the attachment suit, and an execution issued to the sheriff, do not constitute an order to the obligors to deliver the property at a given time and place.^ Where the bond is for the delivery of the property Avithin a stipulated time after the rendition of a judgment in favor of the plaintiff in the attachment suit, it is not necessary, to sustain an action on the bond, that an order be made that the judgment shall be a lien on the attached property, or directing the sale of the property. The right of action is complete upon the failure to deliver the property within the stipulated time.*^ And where 1 Kirk V. Morris, 40 Alabama, 225 ; * Jlitchell v. Merrill, 2 Blackford, 87. Ehodes v. Smith, 66 Ibid. 174. 5 Brotherton v. Thomson, 11 Missouri, 2 Morris v. Hall, 41 Alabama, 510. 94. 8 Rhodes v. Smith, 66 Alabama, 174. « Waynant v. Dodson, 12 Iowa, 22. [307] § 336 BAIL .AND DELIVEKY BONDS. [CHAP. XIII. the obligation was for the delivery of the attached property to the officer, " if so ordered by the court on the 16th of August, 1878 ; " and the case was continued till the 18th of October, when judgment was rendered for the plaintiff, and execution was issued thereon ; under which the officer demanded the return of the property, which was refused ; and the officer sued on the obligation ; it was held, that the fact that the judgment was ren- dered on a day subsequent to that named in the agreement was wholly unimportant ; that time was not of the essence of the contract ; and that it was the duty of the obligor to return the property on any subsequent day when the officer was entitled to demand and receive it.^ § 335. If, after the defendant has given a delivery bond for attached property, the court, pending the suit, orders the property to be delivered into the custody of the officer and sold, and this is done, the sureties in the bond are discharged.^ And the surety in such a bond may exonerate himself therefrom, by delivering the property to the officer, at any time before judgment is ren- dered against him on the bond.-'^ This delivery must be an actual one, — that is, the property must be brought, and pointed out, and offered to the officer. Therefore, where a forthcoming bond was given for a slave, and the principal, on the day the slave was to be delivered, met the officer crossing the street rapidly, and said to him, " Here is the boy ; I have brought him to release J. on that bond ; " and the officer replied, " Very well ; " but the slave was not pointed out, and the officer did not see him ; it was held to be no proper delivery.* § 335 a. Where the terms of the bond are for the delivery of the property to the officer on demand, and the attachment defendant has removed the property out of the jurisdiction of the court, no demand is necessary.^ § 336. The signers of such a bond cannot object that it is not their deed, because it was written over their signatures delivered 1 Turner v. Armstrong. 9 Bradwell, 24. Ransforrl v. Perrin, 6 B. Monroe, 595 ; 2 Kicliards v. Craig, 8 Ba.xtcr, 457. Kirk v. Morris, 40 Alabama, 225. 8 Reagan i;. Kitciien, 3 Martin, 418 ; ^ Pogne v. Joyner, 7 Arkansas, 462. 6 Driggs V. Harrington, 2 Montana, 30. [308] CHAP. Xiri.] BAIL AND DELIVERY BONDS. § 337 to the ofBcer in blank, instead of their signatures being affixed after the instrument was written. In such case the officer acts as the agent of the obligors in filling up the writing, and may prove his agency ; and if he be dead, his declarations in relation to it may be given in evidence, as part of the res gestce} In the case in which this was decided, all the parties to the paper wrote their names upon it, with the intention that it should be filled up as a forthcoming bond, and delivered it to the officer for the purpose of being so filled up. But where the paper is signed by a surety, with an understand- ino- that others are to sign it with him, and it is delivered with- out their signatures being obtained, the surety will not be bound. This was so held in Louisiana, where a surety signed a bond in which the names of three principals were written, only one of whom signed it ; '^ and in Mississippi, where the surety signed, under a representation that two others would become cosureties •with him, and the bond was delivered without their signatures having been obtained.^ Where the statute requires tlie bond to be with sureties, and one is given in which the obligors are named as principals, and no one as surety ; the obligors cannot object to the validity of the bond for want of sureties.'* § 336 a. In Texas it is held, that the obligation of the sure- ties in a forthcoming bond is upon two conditions: 1. That the proceeding in attachment was legal and proper ; and 2. That the property levied on was subject to attachment ; and that there- fore, to relieve themselves from liability, they may-move to quash the attachment.^ And in Georgia it was decided that there could be no legal judgment against the surety where the attachment was void.^ § 337. The seizure of property under attachment, upon which the party having it in possession has a lien, cannot devest the lien. And if such party release it by giving bond, it seems he 1 Yocum V. Barnes, 8 B. Monroe, 496. 123. See Crawford v. Foster, 6 Georgia, ■^ Clements v. Cassilly, 4 Louisiana 202. Annual, 380. See Bean v. Parker, 17 * Scanlan v. O'Brien, 21 Minnesota, Mass. 591 ; Wood v. Washburn, 2 Pick. 434. 24. ^ Burch v. Watts, 37 Texas, 135. 3 Sessions v. Jones, 6 Howard (Mi.), ^ Neal v. Gordon, 60 Georgia, 112. [309] § 339 BAIL AND DELIVERY BONDS. [CHAP. XIII. will be responsible on the bond for no more than the balance which may remain in his hands after paying himself the amount due him.^ § 338. In Kentucky, under their practice of attachment in chancery, it was held, that suit on a bond for the forthcoming of attached property was prematurely brought, where the Chancel- lor had not disposed of the case, and remitted the party to his remedy on the bond.^ In the same State it was held, in lelation to such a bond, that the surety ought not to be proceeded against alone, where the principal \vas wdthin reach of the process of the court.^ And in Louisiana, the surety cannot be made liable, until restoration of the property or payment of the bond has been demanded of the principal.* But it. is not necessary that a demand upon the surety, or notice to him of the order of the court for the delivery of the property, should be shown, in order to sustain a proceeding against him on the bond.^ § 339. In an action on a bond of this description, the obligors cannot complain that the penalty in it is not as lai'ge as the law required ; ^ nor can the}'" question the validity of the officer's levy of the attachment ;^ nor olgect to the validity of the affidavit on which the writ issued ; ^ nor complain of mere errors in the action against their principal.^ Nor is it competent for them to aver that thej)roperty attached was not the defendant's, but belonged to a third person, who took it into his possession, wdiereby they were prevented from having it forthcoming to answer the judgment of the court. They are estopped by the bond from contesting the defendant's right to the property. They undertake to have it forthcoming, and it is their duty to comply with tlieir obligation, and leave it to the plaintiff in the attachment and the claimant of the property to litigate their rights ; not to take it out of the pos- 1 Canficld v. IM'Laughlin, 10 Martin, 48. 172. But in Georgia tlie surety in a de- 2 Hansford ?•. Perrin, G B. Monroe, 505. livery bond was allowed to move in arrest 8 Page V. Long, 4 B. Monroe, 121. of judgment against liim, on the ground * Goodman v. Allen, 6 Louisiana An- tlial tlie affidavit was insufficient to an- nual, 371. tliorize tlio issue of the attaohment ; and 6 Weed V. Dills, 34 Missouri, 483. that after a like motion by the defendant 6 Jones V. M. and A. Railroad Co., 5 had been overruled. The grounds of this Howard (Mi.), 407. ruling were not stated by tlie court. Neal ^ Scanlan v. O'Brien, 21 Minnesota, v. Gordon, 60 Georgia, 112. 434. ^ Atkinson v. Foxwortli, 53 Mississippi, 8 Goebcl r. Stevenson, 35 Michigan, 733. [310] CHAP. XIII.] BAIL AND DELIVEKY BONDS. § 340 session of the plaintiff, and put it into that of an adverse claim- ant, and thus excuse themselves for a breach of their covenant.^ Equally are the parties to such a bond estopped from denying the admissions made in the condition of the bond. Therefore, where a bond recited the issuing of an attachment and its levy on the property, it was held, that the obligors could not, in an action on the instrument, deny that an attachment had issued and been levied.^ And where a party gave bond to hold attached property or its proceeds subject to the judgment of the court, it was held, that he could not set up as a defence against the bond, that the sheriff to whom it was given had no legal or equitable interest in the property.^ And where the condition of the bond was the delivery of the attached property to the sheriff, in the event of a judgment being rendered against the defendant, it was held, that it was no defence to a surety that the judgment against the de- fendant did not order the property to be sold.* Nor in such cases is it any defence against a recovery on the bond, that, after its execution, the property was seized under process of court, or otherwise, and taken from the possession of the obligor ; for he could protect his right of possession by replevying it.^ § 340. Where statutory provision is made allowing a party other than the defendant to retain attached property, on execu- 1 Sartin v. Wier, 3 Stewart & Porter, validity of tlie attachment. Schwein v, 421; Gray v. MacLean, 17 Illinois, 404; Sims, 2 Metcalfe (Ky.), 209. See Hal- Dorr w. Clark, 7 Michigan, 310; Eastonr. bert u. McCuUoch, 3 Ibid. 456. But if Goodwin, 22 Minnesota, 426. In Iowa, he fails to assert his claim to the prop- where such a defence is allowed by stat- erty until, by judgment, it is subjected to ute, it was held not sufficient to aver that the attachment, he shall then neither be the property was not the defendant's ; heard in a defence to the bond, nor on a but the plea must show whose it was. suit for the recovery of the money or the Blatchley v. Adair, 5 Iowa, 545. In Ken- property. Miller v. Desha, 3 Bush, 212. tucky, in an action on a bond, the under- 2 Crisman ;•. Matthews, 2 Illinois (1 taking of which was, " that the defendant Scammon), 148; Price v. Kennedy, 16 S. shall perform the judgment of the court Louisiana Annual, 78. But in Tennes- jn this action, or that the undersigned H. see, in a proceeding in chancery, a deliv- will have the seventy-five hogs attached ery bond was set aside, upon its being in this action, or their value, §412, forth- shown that it had been given on the rep- coming and subject to the order of the resentation of the officer that he had court for the satisfaction of sucii judg- attached property, when, in fact, he had ment ; " it was held, that the owner of not done so. Connell v. Scott, 5 Baxter, property, attached in an action against a 595. third person, wlio gives such a bond in ^ Morgan v. Furst, 4 Martin, n. s. 116. order to retain his possession, is not * Guay v. Andrews, 8 Louisiana An- thereby precluded from asserting his nual, 141. claim to the property, or aisputing the ^ Roberts v. Dunn, 71 Illinois, 46. [311] § 341 BAIL AND DELIVERY BONDS. [CHAP. XIII. ting a forthcoming bond therefor, if such party claim to be the owner of tlie property, he must nevertheless return it to the officer, and then assert his claim. He cannot set up his owner- ship as a defence to an action on the bond.^ § 340 a. When the defendant releases property on bond, he undertakes to make successful defence to the action, and if he fail, his liability upon the bond becomes irrevocably fixed by the final judgment. So, too, with a third party who gives such a bond ; he undertakes to justify the delivery of the proj)erty to himself, and to make that justification in the suit to which he has voluntarily made himself a part}' : he assumes that he has the right to intervene on account of the property ; and if he fail, he becomes responsible on his bond, and cannot be permitted to litigate the action again upon other grounds,^ § 340 h. A delivery bond is a substitute for the property attached, only with regard to the plaintiff. A third party claiming the property cannot, in reference thereto, maintain an action on the bond.^ § 341. If the obligors in the bond are prevented by the act of God from delivering the property, their liability is discharged. Therefore, where the bond was for the forthcoming of a slave, ■who died before the parties were bound to deliver him, it was de- cided that they were not responsible.* This rule, however, is not of universal application, but the obligor may, b}^ his own conduct, lose the benefit of it. There is a distinction between a bond rightly given, to retain possession until the litigation be ended, and one given wrongfully to get a possession to wliich the party is not legally entitled. A bond of the former description is usually given by or on behalf of the defendant, and does tlie plaintiff no legal injury. One of the latter description is, where a third party comes into the case as claimant, and seeks possession of the prop- erty until his claim is adjudicated. In such case, if his claim is rejected, he is to be regarded as a bailee in his own wrong, liable 1 Braley v. Clark, 22 Alal)ama, 361 ; » Wriglit v. Wliitc, 14 Louisiana An- Coojier i;. Peck, Ibid. 400; Morgan v. nnal, 583; Wliite v. Hawkins, 10 Ibid. Furst, 4 Martin, n. 8. 116. 25. - Wriglit V. Oakey, 10 Louisiana An- ■• Falls c Weissinger, 11 Alabama, 801 ; nual, 125. Pvsl, § 385. [312] CHAP. Xrir.] BAIL AND DELIVERY BONDS. § 341 C for all accidents, and taking all the hazards ; this being con- sidered very different from a case wherein one of two equally innocent parties must suffer by an inevitable casualty. There- fore, where such a claimant gave such a bond for a horse that was attached, and presented his claim therefor, and the court found against his claim, and ordered him to produce the horse ; and he responded that, before judgment, and without his fault, but by the act of God, the horse had died ; he was nevertheless held liable upon the bond.^ § 341 a. If through the instrumentality of the attachment plain- tiff the obligors are prevented from delivering the property, no action will lie on the bond. Thus, where attached property was released from the custody of the officer, upon a bond being exe- cuted to him for that purpose, and afterwards an execution in favor of a stranger to the attachment proceedings, issued after levy of the attachment, was levied upon the attached property by the consent and direction of the attachment plaintiff, and the property was sold under the execution ; it was held, that there could be no recovery on the bond.^ § 341 h. The dissolution of the attachment discharges the obligation of the sureties in a delivery bond.^ Thus the dis- charge of the principal in bankruptcy, before judgment rendered against him, has that effect.^ And so, if within four months after the levy of the attachment a petition in bankruptcy be filed against the attachment defendant, and he be adjudged bank- rupt.^ And so, where the death of the defendant has the effect of dissolving the attachment.^ § 341 c. If the fulfilment of the obligation of a delivery bond be made by law impossible, the bond cannot be enforced. Thus, where a bond was given for the forthcoming of slaves which had been attached, it was held, that it could not be enforced after the 1 Dear u. Brannon, 4 Bush, 171. Sed s. s. 163; Gass v. "Williams, 4G Indiana, contra, Atkinson v. Foxworth, 53 Missis- 253. sippi, 741. 4 Payne v. Able, 7 Busli, 344. ^ Jfeger v. Stcclting, 30 Indiana, 341. ^ Kaiser v. Richardson, 5 Daly, .301. 8 Bildersee v. Aden, 10 Abbott Pract. '^ Upham v. Dodge, 11 Eliode Island, 621. [313] § 342 BAIL AND DELIVERY BONDS. [CHAP. XIIT. slaves had been emancipated by the thirteenth amendment to the Constitution of the United States.^ § 341 d. Though, as we have seen,^ attached property, for which a delivery bond has been given, cannot lawfully be again taken under a junior attachment, yet if it be so taken from the possession of the sureties in the bond, and delivered to the plain- tiff in the junior attachment, by whom it is removed and sold, the sureties are thereby discharged from the obligation of the bond ; and the plaintiff in the first attachment may hold the officer who levied the junior attachment for the value of the property, and perhaps may maintain an action for money had and received against the plaintiff in the junior attachment.^ § 342. The measure of recover}- on a delivery bond is the value of the property secured by it, not exceeding the amount of the plaintiffs recovery in the attachment suit. And the value is that which the property had at the time it was attached, not at the time of judgment recovered in the attachment suit.^ If the value be stated in the bond, it will be conclusive on the obligors ; if not stated, it must be established by proof. Where, therefore, the bond was in double the amount of the demand in the attach- ment suit, it was held to be error, in the absence of proof of value, for the court to instruct the jury, that they should assume the half of the penalty of the bond to be the true value of the prop- erty.^ And if the property be sold at sheriff's sale, by order of the court, the price for which it sold is not the measure of the damages recoverable on the bond.*5 Where the law provided that judgment should not be entered against the surety for a sum greater than the assessed value of the ]:)roperty, it was decided, that if there was no assessment of its value, there could be no judgment against the surety.' If the property was sub- ject to a prior valid lien, and the surety in the bond allow it to be taken from him under such prior lien, his obligation will not 1 Yonnsr.rickens, 45 Mississippi, 553. 5 Collins v. Mitchell, 3 Florida, 4; See Green v. Lanier, 5 Ileiskcll, 002, and Moon v. Story, 2 B. Monroe, 35i ; Weed the comments on it in Barry v. Frayser, 10 v. Dills, 34 Missouri, 483 ; Turner v. Arm- Ibid. 200. strong, Bradsvell, 24. 2 Anip, § 3.3L ^ Trcntman r. Wiley, 85 Indiana, 33. » Cordaman v. Malone, G3 Alabama, '' Kiciiard v. Mooney, 3',) Mississippi, 550. 357 ; rhillips v. Harvey, 50 Ibid. 4b9. * Perry v. Post, 45 Conn. 354. [314] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 343 thereby be discharged ; but only nominal damages can be recov- ered against him, unless the property was greater than the amount of tlie lien ; in which case the excess would be the measure of damages.^ § 343. If one joint obligor in a delivery bond be compelled to pay the whole amount of a judgment recovered on the bond, he may maintain an action against his co-obligor for contribution.^ 1 Dehler i'. IleUl, 50 Illinois, 491 ; Hay- ^ Labeaume v. Sweeney, 17 Missouri, man v. Ilallam, 7U Iveiitucky, 389. 153. [315] § 344 BAILMENT OF ATTACHED PBOPEETY. [CHAP. XIV. CHAPTER XIV. BAILMENT OF ATTACHED PROPEETT. § 344. In the New England States and New York, a practice exists, which allows an officer who has attached personal property on mesne process, to dispense with his own actual custody there- of, by delivering it to some other person, — usually a friend of the defendant, though the plaintiff may lawfully become the bailee,^ — and taking from him a writing, acknowledging the receipt, and promising to redeliver the property to the officer on demand. This practice has not its authority in an}^ statutory provision; but is nevertheless in constant use in those States; and though not regarded as one to which the officer is officially bound to conform,^ has yet become so well settled, and is so far held in regard, that the Superior Court of New Hampshire remarked, that " there are cases in which a sheriff, if he should refuse to deliver goods to a friend of the debtor, upon an offer of good security, would deserve severe censure." ^ The same court said : " It is true that when goods are attached the sheriff may retain them in his own custody in all cases, if he so choose. But it would often subject him to great inconvenience and trouble so to retain them. In many cases, the interest both of the debtor 1 Tomlinson v. Collins, 20 Conn. 3G4. tion to this prnctice, said : " The taking 2 Davis i: Miller, 1 Vermont, 9 ; Moul- of a receipt for property attached is a ton V. Chadhorne, 31 Maine, 152. In common mode of perfecting an attach- Batchckler i'. Frank, 40 Vermont, 90, the ment. It saves expense to all the parties, court said : " The law does not require relieves the officer of the care and cus- tlie officer to take a receipt fur projierty tody of the property, and gives the cred- attached. . . . Whether the officer will or itor all he seeks for by his attachment, will not take a receipt, is not the exercise viz., security for his debt. It is at once of official function, but is determined by so convenient and so safe a mode of se- him on personal reasons, in view of all curing all the purposes of an attachment that appertains to the subject ; and those that it has been adopted universally in reasons are not amenable to judicial in- practice; and though not authorized by quiry as between him and the party whose statute, is recognized in law as an official receipt he declines to take." act having definite and well-settled rights, 3 Kiinlett (-•. Bell, 5 New Ilamp. 433. duties, and obligations." Austin v. Bur- The Supreme Court of Vermont, in rela- lington, 34 Vermont, 500. [316] CHAP. XIV.] BAILMENT OF ATTACHED PROPEETY. § 345 and the creditor requires that they should be delivered to some person, "who will agree to be responsible for them. And it is a common practice so to deliver them ; a practice which is not only lawful, but in a high degree useful and convenient."^ In Maine, the consent of the plaintiff to this bailment is necessary to dis- charge the officer from responsibility to him for the property. If the goods be delivered to a receiptor without the plaintiff's con- sent, the officer will be liable to him at all events for them, if they are needed to satisfy an execution obtained by the plain- tiff.2 But it was also held, in the same State, that if an attach- ment plaintiff approve the ability of a receiptor for attached property, that does not exonerate the officer from making effort to find the property to respond to execution, or from the duty of bringing a suit upon the receipt.^ § 345. This contract of bailment does not seem to be uniform in its terms, either throughout the States in which it is resorted to, or in any one of them, but varies according to the circum- stances of the case, or the intent of the parties. Sometimes, and most frequently, the bailee simply acknowledges to have received from the officer certain goods, attached by the latter in a case named, which he agrees to return to the officer on demand. Sometimes the value of the goods is stated; and not unusually the contract is in the alternative, either to return the goods, or 1 Runlett V. Bell, 5 New Hamp. 433. most natural form of snch a writing. In Phelps V. Gilchrist, 8 Foster, 266, Various circumstances, which might be- Bell, J., used the following language in come material to the parties, would as reference to tliis practice : " The practice naturally be introduced, as their utility of delivering property attached to a bailee came to be seen, until every thing sup- for safe keeping, must have been coeval posed to be otherwise likelj' to be an with the practice of making such attach- occasion of dispute, would be mentioned, ments. It is, in its nature, a simple . . . There is ordinarih^, however, noth- deposit, a delivery of the property to ing in such a receipt which changes the be kept by th.e depositary, without com- duties or obligations of the parties, from pensation, until called for by the attach- what they would be, on a simple deposit, ing officer. No particular agreement was without any writing whatever. Usually necessary, and no writing was required, the sole advantage of the writing is, that The convenience and safety, perhaps of it contains evidence of facts which, in both parties, would render some writing, the event of any controversy, may be showing the facts, necessary, in cases disputed, and may sometimes be difficult where the number of the articles attached of proof." was considerable. In general, a simple ^ Moulton v. Chadborne, 31 Maine, receipt, admitting that the articles enu- 152; Franklin Bank v. Small, 24 Ibid, merated had been delivered by the officer 52 ; Torrey v. Otis, 67 Ibid. 573. to the receiptor for safe keeping, and to 3 Allen v. Doyle, 33 Maine, 420. be returned, on request, would be the [317] § c46 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIY. pay the debt and costs in the case. In such case the receipt is none the less a positive contract to redeliver the goods ; the alter- native embraced in it does not authorize the bailee to refuse to surrender the goods, nor can it in any sense be construed as vesting in him a power of sale.^ In such case the bailee cannot require the officer to take an equal quantity of goods of the same kind, and quality, or discharge himself b}^ paying the officer the value of the goods ; but he must return the identical articles delivered to him, or pay the debt.^ Occasionally, too, the receipt gives the bailee the alternative of returning the goods, or indem- nifying the officer against all damages he may sustain in conse- quence of his having attached the property. In such a case, where an action was brought on the receipt, it was urged at bar that the receipt, being in the alternative, gave the receiptor, at his election, the right to return the property or indemnify the offi- cer ; and that if he did not return the property on demand, the alternative became absolute, and no action would accrue on the contract till the officer had been damnified. But the court said : " This is not a sound construction of the contract, and cannot be conformable to the intent of the parties. The officer had no power to make any disposition of the property otherwise than for safe keeping ; and to construe this contract, in effect, as a conditional sale, would pervert the very object of the parties. The only effect which the latter clause in the receipt can have is to measure the extent of the receiptor's liability, and is no more than a legal result of a non-deliver}^ of the property."-'^ But where the contract of the receiptor is to pay the officer a speci- fied sum, or redeliver the property on demand, it is held, in Maine, that the receiptor has the election, to pay the money or deliver the property ; that the officer must be considered as hav- ing abandoned his possession ; and that the attachment is thereby dissolved.* § 346. Usually the receipt makes specific mention of the goods attached ; and this is always desirable, but not necessary to the legality of the contract. Whatever can, by just implication, be construed as acknowledging the receipt of property, to be rede- 1 Sibley V. Story, 8 Vermont, 15. » Page v. Thrall, 11 Vermont, 230. 2 Anthony v. Comstock, 1 Rhode Is- * AVaterhouse c. Bird, o7 Maine, 326 ; land, 454. Waterman v. Treat, 49 Ibid. 309. [318] CHAP. XIV.] BAILMENT OF ATTACHED PROPEETY. § 348 lirered to meet the exigency of the attachment, will be sufficient. As, for instance, a paper in the following form, " Value received, I promise to pay B., deputy sheriff, 8400 on demand and interest, said note being security to said B. for a writ C. vs. D. which is this day sued," — was held to be in effect an acknowledgment of property to that amount received as attached on the writ, and a valid receipt.^ § 347. Over this contract the plaintiff in the action has no control ; but it is taken by the officer for his own security, that he may be enabled to discharge the responsibility he has assumed in his official capacity. But if, after the plaintiff has obtained judgment in his action, the officer deliver a receipt taken therein for goods, to the plaintiff's attorney, to be prosecuted for the plaintiff's benefit, this is an equitable assignment of it, which will preclude the officer from interfering with the avails of the receipt when judgment has been obtained on it, though obtained in his name.2 § 348. An officer having attached chattels, becomes liable for them, at the termination of the suit, either to the plaintiff or the defendant ; to the former, if he obtain judgment, and issue exe- cution, and take the necessary steps to have it levied pursuant to the attachment ; to the latter, if the attachment be dissolved, by judgment in his favor or otherwise.^ Under such circumstances it is manifest that a bailment of the property, if it were not recognized as a legal act of the officer, would not in any way affect his relations to the plaintiff and defendant; and conse- quently he would be under the necessity, either of retaining the property in his own actual custody, or of assuming upon himself the entire responsibility of suffering it to go into the hands of a third person. But we have seen that the bailment, wherever this practice prevails, is regarded as a legal act ; and it must needs be, therefore, that questions will arise as to the rights, duties, and liabilities of all the parties. These we will now proceed to consider. 1 Bruce v. Pettengill, 12 New Hamp. r. Dockray,. 34 Ibid. 45; Phillips v. Bridge, 341. 11 IMass. 242. 2 Clark I'. Clougli,3Maine,.357; Jewett ^ Lawrence v. Eice, 12 Metcalf, 527; Torrey v. Otis, 67 M.iinc, 573. [319] § 351 BAILMENT OF ATTACHED PEOPEETY. [CHAP. XIV. § 349. That which seems to lie nearest the foundation of this subject is the rehation established by the contract of bailment between the officer and the bailee. This has been the subject of frequent discussion, and the conclusion seems to have been gen- erally arrived at, that the bailee is to be viewed in the light of a servant or agent of the officer.^ In New York he was formerly regarded as a mere naked bailee, having no interest or property in the goods ; and in Massachusetts such is the doctrine now ; but however true this may be as between him and the officer, it will be seen, in another place,^ that the weight of reason and authority is greatly in favor of his being considered as having rights in the property, as against third persons, which will enable him to maintain his possession of it. All questions, however, arising between him and the officer, will be found to be materially affected by their mutual relation being regarded as that of master and servant, or principal and agent. § 350, An officer, by the levy of an attachment, acquires a special property in the goods seized.^ As long as the attachment continues in force, and its lien upon the property remains undis- turbed, that special property exists, and enables the officer to maintain his rights acquired by the levy. An indispensable ele- ment of the continued existence of the lien is, the officer's con- tinued possession of the propert}^ actual or constructive, that is, personally or by another.* As the bailment of it is, for the time, a surrender of his personal or actual possession, what is the effect of the bailment on the lien of the attachment ? § 351. In jNIassachusetts, it was once held to be xevy clear, that after an officer had delivered attached property to a receiptor, and taken his receipt therefor, and his promise to redeliver it on demand, it could no longer be considered as in the construc- tive possession of the officer.'^ But this view is wholly incon- sistent with other decisions in the same State,^ and not less with > Lmlden v. Lcavitt, 9 Mass. 104 ; v. Ilinman, 8 Wendell, CG7 ; Gilbert v. "Warren v. Leland, Ibid. 205; Bond v. Crandall, ol Vermont, 188. Padelford, U Ibid, mi ; Commonwealth " Post, § .167. V. Morse, 14 Ibid. 217 ; Brownell r. Man- 3 Ante, § 291. Chester, 1 Tick. 2«2; Small r. Hntchins, * Aiilr, ^ 2'M 19 Maine, 255 ; Eastman v. Avery, 23 ^ Knap i'. Spragne, 9 Mass. 258. Ibid. 248; Barker v. Miller, 6 Johnson, 6 jjond r. Padelford, 13 Mass. 394; 195; Brown v. Cook, 9 Ibid .%1 ; Dillen- Baker r. Fuller, 21 Pick. 318; Ludden v. back V. Jerome, 7 Cowen, 294 ; Mitchell Leavitt, 9 Mass. 104. [320] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 353 the doctrine maintained there in numerous cases, that the special property of the officer in the goods continues after the baihnent, and that the receiptor is the mere servant of the officer, having himself no rights in the goods, and therefore unable even to maintain legal remedies for the disturbance of his possession. Equally is it opposed to the current of authority elsewhere. In Vermont, New Hampshire, and Connecticut, it has always been considered that the delivery of attached property to a receiptor, and taking his receipt therefor, does not discharge the lien of the attachment, nor devest the officer of his custody of, or of his special property in, the goods.^ § 352. In Maine, under a statute which declares " that when hay in a barn, sheep, horses, or neat cattle are attached on mesne process, at the suit of a bond fide creditor, and are suffered by the officer making such attachment to remain in the posses- sion of the debtor, on security given for the safe keeping or delivery thereof to such officer, the same shall not, by reason of such possession of the debtor, be subject to a second attach- ment, to the prejudice of the first attachment ; " it was held, that this was designed to preserve and continue the lien on the property attached, in the same manner as though it had remained in the exclusive possession of the officer ; that in such case the debtor cannot sell the property ; and that even a bond fide pur- chaser of it without notice acquires no rights in it.'^ § 353. Since, then, the officer's special property is not lost by the bailment, and the bailee stands in the position of his servant, it follows that the officer, — where no time is stated in the re- ceipt for the return of the goods, — may, at any time while his special property in them continues, or while he is responsible for them to any party in the suit, or to the owner of them, retake them into his actual possession, from the bailee, or from the de- fendant, if the bailee shall have suffered them to go back into his possession : ^ and this, as well where the bailment is the act 1 Pierson v. Ilovey, 1 D. Chipman, 51 ; Pa^e, 54 Ibid. 190 ; Bnzzell i'. Hardy, 58 Enos V. Brown, Ibid. 280 ; Beach v. Ab- Ibid. 330 ; Tomlinson v. Collins, 20 Conn, bott, 4 Vermont, 605 ; Rood v. Scott, 5 364. Ibid. 263; Sibley v. Story, 8 Ibid. 15; - Woodman v. T raft on, 7 Maine, 178; Kelly V. Dexter, 15 Ibid. 310 ; Whitney Carr v. Farley, 12 Ibid. 328. V. Farwell, 10 New Hanip. 9 ; Rowe v. ^ Pierson v. Hovey, 1 D. Chipman, 51 ; 21 [321] § 354 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. of his deputy, and the receipt is taken by the deputy in his own name, as wliere the contract is in the name of the principal.^ The Supreme Court of Maine once expressed serious doubts whether the officer coukl retake the property without the con- sent of the debtor or receiptor ;2 but afterwards expressed itself thus : " The defendant (the receiptor) is the mere bailee of the plaintiff (the sheriff). He is bound to surrender the property on seasonable demand, whenever the plaintiff may require it, whether there has been a judgment in the action in which the attachment was made or not. He has no interest in the property bailed b}^ which he can retain it as against the bailor. His con- tract is with the officer attaching and no one else. The officer has a right at any moment to the possession of the property, that he may be ready to restore it to the defendant, if the attachment is dissolved, or that it may be sold on the execution if the plain- tiff recover judgment."^ § 354. This right, where there is but one attachment, usually depends on the officer's responsibility to the plaintiff; that is, upon the necessity for his having the property in hand to satisfy the plaintiff's demand. If, by the dissolution of the attachment, that necessity has ceased to exist, and at the same time the bailee has suffered the property to go back into the defendant's hands, the officer, not being any longer responsible for it to either plain- tiff or defendant, cannot demand it of his bailee. But if, upon the dissolution of the attachment, the property be still in the bailee's possession, the officer, being bound to restore it to the defendant, or to the owner, may demand it from the bailee for that purpose.* Enos V. Brown, Ihifl. 280 ; Beach v. Ab- Balcor v. Warren, 6 Gray, 527 ; Col well bott, 4 Vermont, G05 ; Rood v. Scott, 6 v. Richards, 'J Ibid. 374. And the same Ibid. 2G3: Sibley v. Story, 8 Ibid. 15; view is hold in Maine. Waterliouse v. Kelly V. Dexter, 15 Ibid. 310 ; Brisips v. Bird, 37 Maine, 32G ; Stanley v. Drink- Mason, 31 Ibid. 433 : Odiorne v. Collcy, water, 43 Ibid. 408. 2 New Ilamp. 66; Whitney v. Farwell, ' Baker r. Fuller, 21 Pick. 318; Davis 10 Ibid. 0; Bond v. Padelford, 13 Mas.s. v. Miller, 1 Vermont, 9. 394. But in Massachusetts it was hold, - Woston v. Dorr, 25 Maine, 176. that a (lolivcry of the attached goods by ^ Hangs r. Beacham, 08 Maine, 425. the receiptor to the defendant, legally * Whittier v. Smith, 11 Mass. 211; operates as a discharge of the attach- Webster v. Harper, 7 New Ilamp. 694; mcnt, and a termination of the atfacli- Bell i'. Sliafer, 58 Wisconsin, 223. ing officer's special property in them. [322] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 857 § 355. If, while the property is still in the bailee's possession, the same officer lay a second attachment on it, his control over it is not terminated by the dissolution of that under which the bail- ment was created, if the second attachment remains in force ; for by the second attachment he becomes responsible for the prop- erty to the plaintiff therein ; and the bailee is responsible to him. That this should be so, depends, of course, on the legality of a second attachment, of which there can be no doubt.^ § 356. While attached property remains in the possession of the attaching officer, or of his bailee, no other officer can levy another attachment on it.^ But he who has seized property un- der an attachment, so long as he has either actual or constructive possession of it, may attach it again, at the suit of the same or another plaintiff. This right extends over property in the hands of a receiptor, as well as that in the officer's immediate custody. While it is in the receiptor's possession, the second attachment may be made by the same officer, without an actual seizure, by the officer's returning that he has attached the property, and giving the receiptor notice, with directions to hold it to answer the second writ. But if the receiptor has permitted the prop- erty to go back into the defendant's hands, a second attachment cannot be made without a new seizure.^ When an officer lays a second attachment on goods in the hands of a bailee, the latter may decline to hold them for the security of that attachment, and may return them to the officer ;^ but if he make no objection to holding them, his liability will be the same under the second as under the first attachment. § 357. As has been intimated, it is very usual for the receiptor to permit the property to remain in the defendant's hands. Hence have arisen wliatare termed nominal attachments ; that is, where the property is not actually seized, or, if seized, is left, at the time, in the defendant's possession, upon some friend of the de- fendant giving, in either case, a receipt therefor. Such an attach- 1 Ante, § 269. ^ K„ap v. Sprasfue, 9 Mass. 258 ; 2 Watson V. Todd 5 Mass. 271 ; Vin- "VVhittier v. Smith, 11 Ibid. 211 ; Odiorne ton V. Bradford, 13 Ibid. 114; Thompson v. Collcj', 2 New Ilamp. 66 ; Whitney i\ V. ]\Iars1i, 14 Ibid. 269 ; Odiorne v. Colley, Farwell, 10 Ibid. 9 ; Tomlinson v. Collins, 2 New Hamp. 66; Sinclair v. Tarbo.'c, 20 Conn. 364. Ibid. 5. * Whitney v. Far well, 10 New Ilamp. 9, [323] § 359 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. ment is so far valid as to bind the officer for the value of the property and to give force to the contract between him and the bailee ; but, with respect to strangers, other creditors, or pur- chasers without notice, it is wholly inoperative.^ The Supreme Court of Massachusetts on this point said : " Such transactions are always confidential ; the sheriff takes his security from the friend of the debtor ; and this friend is secured by, or relies upon, the debtor. They all act at their peril, and have it not in their power to affect the security of the attaching creditor, or by such means to withhold the property from other creditors." ^ There- fore, in all such cases, where the property remains in the debtor's hands, whether because never removed, or because returned after a removal, though, as we have seen, the officer may, at any time during the existence of the attachment, retake it from the de- fendant, if the matter be between him, the bailee, and the de- fendant only, yet the defendant may sell the property ,3 or it may be attached by other creditors. ^ And it is held in Massachusetts, that a delivery of the attached goods by the receiptor to the de- fendant legally operates as a discharge of the attachment, and a termination of the attaching officer's special property in them. ^ § 358. It is not, however, every possession by a defendant of his property, after an attachment and bailment of it, that will authorize a second attachment. If an officer or his bailee, still retaining his possession, bond fide, and from motives of humanity suffer the defendant to use attached articles, which will not be injured by such use, the attachment is not thereby dissolved.^ § 359. But if the bailee permits the defendant to hold and use the property as owner, the attachment is regarded as dissolved, so far as that the property may be attached by another officer who has no knowledge that a prior attachment is still subsisting.' What knowledge of such fact will suffice to prevent a second attaching officer from acquiring a lien on the property thus found 1 Bri(]ge !'. Wyman, 14 Mass. 190 ; Bell Pnnkleo v. Fales, 5 New Hamp. ^627 ; V. Sliafer, 58 Wisconsin, 223. Robinson v. MnnsfiuM, 13 Pick. 139. 2 Brid-ie v. Wyman, 14 Mass. U'O; 6 Baker r. Warren, Gray, 527. Pl.iUips !•. Bridpe, 11 Ibid. 242. c Train v. Wcliiniiton, 12 Mass. 405; 3 Denny i-. Willard, 11 Pick. 519; Baldwin r. Jackson, Ibid. 131 ; Young u. Robinson" u. Mansfield, 13 Ibid. 139. Walker, 12 New Ilanip. 502. * Bridge v. Wyman, 14 Mass. 190; " Wbitney v. Farwell, 10 New Ilamp. 9; Bicknell v. Hill, 33 Maine, 297. [324] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. 362 iu the defendant's hands, may be a question. Merely knowing the fact that the property had been once under attachment will not be sufficient ; for the officer might well presume that that attachment had been settled or dissolved. But if he know that the attachment and bailment still subsist, and that the property is in the hands of the defendant merely for his temporary convenience, he cannot acquire a lien by attaching it.^ § 360. If the bailee go off and abandon all possession and cus- tody of the property, and it is attached by another officer,^ or come into the possession of an adverse claimant,^ the hen of the first attachment is lost. § 361. An important question arises out of this practice of bail- ment, as to the liabihty of the officer for the fidelity and pecuniary ability of the bailee. It seems to be conceded, that, if the bailee is nominated or approved by the plaintiff, and he afterwards fail to deliver the property when required to meet the attachment, the officer cannot be held responsible for it.* All, however, that the creditor, by his consent to the bailment, is supposed to agree to, is to exonerate the officer from liability for losses occasioned by the insolvency or want of fidelity of the bailee ; but not for losses occasioned by the neglect of the officer to enforce his own rights and remedies against his bailee.^ But if the bailee be selected by the officer, and afterwards fail to deliver the property, and the value of it cannot be made out of him, can the officer protect himself from liability for the value of the property ? § 362. In Massachusetts, Morton, J., said: " The officer who attaches personal property is bound to keep it in safety, so that it may be had to satisfy the execution which may follow the attach- ment. This duty he may perform himself, or by the agency of others. If he appoint an unfaithful, or intrust it with an irre- sponsible, bailee, so that it is lost through the negligence or infi- delity of the keeper, or the insufficiency of the receiptor, he will 1 Young V. "Walker, 12 New Hamp. * Donham v. Wild, 19 Pick. 520 ; Jen- 502. ney v. Delesdernier, 20 Maine, 183 ; Rice 2 Sanderson v. Edwards, 16 Pick. 144. v. Wilkins, 21 Ibid. 55S ; Farnham v. Gil- 3 Carrington v. Smith, 8 Pick. 419 ; man, 24 Ibid. 250. BoyntoQ v. "Warren, 99 Mass. 172. ^ pierce v. Strickland, 2 Story, 292. [325] § 363 BAILMENT 0¥ ATTACHED PROPERTY. [CHAP. XIV. be responsible for the value of the property." ^ This doctrine was affirmed by Justice Story, who said that if goods intrusted to a bailee " were lost, or wasted, or the bailee should become in- solvent, tlie officer would be responsible therefor to the creditor." ^ So, in Vermont, where a bailee sold the property, and converted the proceeds to his own use, it was held, that this was the same as a conversion by the officer, and made the latter liable for the property, without a previous demand of it from him being neces- sary .^ And in the same State the officer is held responsible for the fidelity and solvency of his bailee, the latter being regarded as his mere servant.^ § 363. On this point, we find the Superior Court of New Hampshire taking a different ground from that taken in Massa- chusetts and Vermont. The question there came up, in refer- ence to the insolvency of the bailee. The court said : " To what extent is an officer responsible for goods by him attached upon an original writ, has not been settled in any adjudged case, which has occurred to us. He is, without doubt, to be considered as a bailee, and answerable for the goods, either to the debtor or the creditor, if they be lost by his neglect or fault. " Is he answerable beyond this ? We are, on the whole, of opinion that he is not. As no cases directly in point are to be found, we must resort to the rules which have been applied in analogous cases. " It seems always to have been understood as settled law, that, when a sheriff takes bail in any suit, if the bail so taken be suf- ficient, in all appearance, when accepted as bail, the sheriff will not be liable for their insufficiency in the end to satisfy the judg- ment which the plaintiff may recover. And if, in replevin, the sheriff take persons as sureties in the replevin bond, who are ap- parently sufficient, he will not be responsible for their sufficiency, unless he was guilty of negligence in making inquiries as to their circumstances. " TJiere seems to us to be a very close analogy between the cases of taking bail and replevin bonds, and the case of delivering goods, which have been attached, to some person for safe keep- 1 Donham v. Wild, 19 Pick. 520; Pliil- - Pierce v. Strioklnnd, 2 Story, 292. lips r. Bridge, 11 Mass. 242; Cooper v. ^ .Tohnson r. Kilsoii, 2 Aiknis, 299. Mowry, !(( Ibid. 5. * Gilbert v. Crandall, iJi Voiniout, 188. [32G] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 366 ing. It is true that when goods are attached, the sheriff may- retain them in his own custody, in all cases, if he so choose. But it would often subject him to great inconvenience and trouble so to retain them. In many cases, the interest of both the debtor and the creditor requires that they should be delivered to some person, who will agree to be responsible for them. And it is a common practice so to deliver them ; a practice which is not only lawful, but in a high degree useful and convenient. Indeed, there are cases in which a sheriff, if he should refuse to deliver goods to a friend of the debtor, upon an offer of good security, would deserve severe censure. "We are, therefore, induced to hold, that if a sheriff deliver goods, which he has attached, to persons who are apparently in good circumstances, and sucli as prudent men would have thought it safe to trust, for safe keeping, he is not liable, if the goods be lost through the eventual insolvency of the persons to whom they may have been so delivered.'' ^ In a subsequent case the same court held, that the officer is not responsible for the tortious acts of his bailee, committed without his knowledge or consent.^ § 364. Here, then, is a conflict of judicial decisions, between which we will not attempt to -decide. The weight of authority appears to be against the New Hampshire doctrine ; but the rea- soning upon which it is based is certainly calculated to shake the confidence which might otherwise be felt in the opposite opinion. § 365. What has been said with regard to the liability of the officer refers to his relation to the plaintiff. He is also liable to the defendant for a return of the property to him in the event of the attachment being dissolved, or the demand upon which it was issued being satisfied. Where, however, the bailment takes place with the consent of the defendant, the officer is not answerable to him for the property, until a reasonable time for recovering it from the bailee shall have elapsed, after the defendant has become entitled to have it returned to him.^ § 366. Having thus stated, first, the general propositions bear- ing upon this contract, and then the rights and liabilities of the 1 Runlett V. Bell, 5 New Hamp. 433 ; ~ Barron v. Cobleigh, 11 New Hamp. Howard r. Wliittemore, 9 Ibid. 134; ; Bruce 557. V. Pettengill, 12 Ibid. 341. ^ Bissell v. Huntington, 2 New Hamp. 142. [327] § 367 BAILMENT OF ATTACHED PKOPERTY. [CHAP. XIV. officer in relation to bailed property, we will now, before proceed- ing to the examination of his remedies, refer to the rights and duties of the bailee. § 367. What rights does the bailee acquire, by the bailment, in and over the attached property ? In Massachusetts, he has always been considered a mere naked bailee, having no property in the goods, and unable to maintain an action for them, if taken out of his custody by a wrong-doer. In a case of similar character, the court there once held differently ; considering that a naked bailee, though he might not maintain replevin, — since, to sustain that action, property in the plaintiff, either general or special, is neces- sary, — yet might bring trover or trespass ; ^ but in every case where the point has arisen in the case of a receiptor of attached property, the same court has held that the receiptor could main- tain no action at all.^ The same doctrine was long held in New York; 3 but has finally, after an extended discussion before the Court of Errors in that State, been discarded ; and it is now held there, that the receiptor may maintain replevin.'* The Superior Court of New Hampshire, at an early day, lield, that for the purpose of vindicating his possession against wrong-doers, the receiptor has a special property in the goods, and may maintain trover against one who takes them from him.° In Vermont, it was decided that the bailee has a possessory interest in the prop- erty, which will enable him to maintain trover for it against a wrong-doer ; that in order to maintain the action it is not neces- sary to hold that he has property in the goods ; and that his pos- session and responsibility over to the officer furnish sufficient title and just right for him to recover.^ In Connecticut the receiptor may maintain trespass for a violation of his possession.'^ Justice Story, in noticing the Massachusetts doctrine, says : " It deserves consideration, whether his possession would not be a sufficient title against a mere wrong-doer ; and whether his responsibility 1 Waterman v. Robinson, 5 Mass. 303. 8 Dillenback v. Jerome, 7 Cowen, 29-1; 2 Luclden v. Loavitt, ;) Mass. 104 ; Per- Norton c. IVople, 8 I). id. 107 ; Mitciiell v. ley V. Foster, Ibid. 112; Warren v. Le- Hinnian, 8 Wendell, 0(37. land. Ibid. 205; Wliittier v. Smith, 11 * Miller v. Adsit, 10 Wendell, 335. Ibid.' 211 ; Bond v. Padelford, 13 Ibid. ^ Poole v. Synionds, 1 New Hamp. 8'.»4; Commonwealih v. Morse, U Ibid. 280; Whitney r. Farwell, 10 Ibid. 9. 217'; Brownell v. Manchester, 1 Pick. « Thayer i-. Hutchinson, 13 Vermont, 232. 504. 7 Burrows v. Stoddard, 3 Conn. IGO. [328] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. 370 over to the officer does not furnish a just right for him to main- tain an action for injuries, to which. such responsibility attaches." ^ And Chancellor Kent says : " Though the bailee has no property whatever in the goods, and but a mere naked custody, yet the better opinion would seem to be, that his possession is a sufficient ground for a suit against a wrong-doer." ^ It may, therefore, be considered that the weight of authority is largely against the doc- trine advanced in Massachusetts ; which seems alike repugnant to well-established principles, and to the justice due to bailees in such cases. § 368. A receiptor's position resembles in one respect that of bail ; in that he may at any time while liable on his receipt to the officer, retake the property from the defendant's possession, and deliver it to the officer, in discharge of his receipt.^ § 369. Though the mere fact of the bailment gives the receiptor no power of sale of the goods,^ yet if he make such a sale with the assent of the debtor, and acting as his agent, it will have the same effect as if the property had been restored to the defendant, and the sale had been made by him ; ^ in which case we have seen that the sale would be valid .^ A sale by a receiptor, with the assent of the attaching plaintiff, has the effect of dissolving the attachment.^ § 370. The duties of the bailee are sufficiently apparent from what has been stated. He is bound to keep the property, and to return it on demand to the officer, and to take reasonable care of it while it is in his custody. He cannot be required to exercise more than ordinary care.^ For any omission of duty in any of these particulars, he will be responsible to the officer. But this obligation to return the property to the officer is not in all cases absolute.^ As has been before stated,i*^ it depends upon the offi- cer's liability for the property, either to the plaintiff, tlie defendant, 1 Story on Bailments, § 133. 6 j^„te, § 357 ; Denny v. Willard, 11 2 2 Kent's Com. 508, note e. ' Pick. 519 ; Robinson v. Mansfield, 13 Ibid. 3 Bond V. Padelford, 13 Mass. 394; 139. Merrill v. Curtis, 18 Maine, 272. 1 Eldridge v. Lancy, 17 Pick. 352. 4 Sibley i'. Story, 8 Vermont, 15. » Cross v. Brown, 41 New Ilamp. 288. 6 Clark V. Morse, 10 New Ilamp. 236. ^ Story on Bailments, § 132. 10 Ante, §§ 354, 355. [329] § 372 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. the owner of it, or a subsequent attaching creditor, who, by phac- ing a second writ in the hands of the same officer who seized the goods in the first place, has succeeded in obtaining a vahd lien on the property. If the ofScer is not accountable for the goods to any one, he cannot make the bailee accountable to him.^ When we come to consider the bailee's defences against an action by the officer on the receipt, we shall see more particularly what facts discharge his liability. § 371. The remedies of an officer for a disturbance of his pos- session of attached property are not confined to his retaking the property; for that would frequently be impracticable. As his special property continues as long as the attachment exists, he may maintain trover,^ trespass,^ and replevin,'^ for any violation of his possession during that period. And this, as well where the property has been bailed, as where it remains in his own hands ; for, though he have not the actual keeping of the goods, yet the custody of the bailee being that of his servant or agent, and his special property being still in existence, he is regarded as having the lawful possession, so as to enable him to maintain an action for it.^ Indeed, in Massachusetts, the officer, and not the bailee, must sue for bailed property;*^ but, as we have just seen, the weight of authority elsewhere is decidedly against that view. § 372. Where a bailee fails to redeliver property according to the terms of his contract, the officer may retake it, if accessible ; but no case has met my observation holding that he is under ob- ligation to do so; except one in Maine, where it was held, that the plaintiff's approval of the receiptor's ability did not exonerate the officer from making effort to find the property to respond to execution, or from the duty of bringing a suit on the receipt.^ 1 In Holt I'. Burbank, 47 New Ilamp. » Brownoll v. Manchester, 1 Pick. 232; 164, tlie Supreme Court of New Ilamp- Badlam v. Tucker, Ibiil. :]b'.) ; Walker v. sliir'e said : " No special contract not un- Foxcroft, 2 Maine, 270 ; Strout v. Brad- der seal can be made wliicii will extend bury, 5 Ibid. 313; Whitney v. Ladd, 10 the receiptor's liability beyond an indem- Vermont, 165. nity to the officer ; for the officer's special "* Perlcy v. Foster, 9 Mass. 112; Gor- property depends upon his liability over." don r. Jenney, 16 Ibid. 465. '•i Ludden )-. Leavitt, 9 Mass. 104 ; ^ Brownell v. Manchester, 1 Pick. 232. Badlam v. Tucker, 1 Pick. 389 ; Lowry <> Ludden v. Leavitt, 9 Mass. 104. i: Walker, 5 Vermont, 181 ; Lathrop v. ^ Allen v. Doyle, 33 Maine, 420. Blake, 3 Foster, 46. [3^0] CHAP. XIV.] BAILMENT OF ATTACHED PKOPERTY. § 373 His right of action on the receipt accrues upon his demanding the property from the bailee, and the failure of the latter to de- liver it.i In cases where the bailment is created by a deputy, his principal may claim to have made the bailment himself and may sustain an action in his own name upon the receipt ;2 or the deputy may sue thereon ;3 but it is not in virtue of his office, but of the personal contract between him and the bailee, that the deputy is enabled to maintain the action.^ If the attachment was made by a person specially authorized to serve the writ, and a receipt given to him, an action on the receipt may be main- tained in his name, after demand made upon the receiptor, by an officer holding the execution in the case.^ It is not necessary, in order to the officer's maintaining an action on the receipt, that he should be still in office; but if, after his going out of office, the property be legally demanded of him by another officer, so as to make him liable for it, he may demand it of the bailee, and main- tain an action on the receipt.^ § 373. As in other cases of mere deposit, no right of action ac- crues to the bailor, until after a demand made upon the bailee, and a failure by him to return the goods; unless there has been a wrongful conversion, or some loss by gross negligence on his part;^ and if the receiptor shall have died, there must be a de- mand upon his personal representative before the cause of action will be considered complete against his estate.^ The necessity for a demand is not dispensed with by proving the receiptor's in- ability to redeliver;^ but in such case the necessity for a demand at any particular place is dispensed with; it may be made wherever the officer finds the receiptor.^o -phe bailee's liability is not fixed instantly on demand, but he is entitled to a reasonable time after demand to deliver the goods, and an action will not lie on the receipt, until there has been a neglect, after reasonable time, to comply.ii If the bailee has suffered the property to go 1 Page V. Thrall, 11 Vermont, 230; 5 Maxfield i^. Scott, 17 Vermont, 634 Scott V. Whittemore, 7 Foster, 309. ^ Bradbury v. Taylor, 8 [Maine, 130. 2 Davis V. Miller, 1 Vermont, 9 ; Baker "^ Story on Bailments, § 107 ; Bacon v. V. Fuller, 21 Pick. 318 ; Smith v. Wad- Tliorp, 27 Conn. 2ol. leigli, 18 Elaine, 95. * Carpenter v. Snell, 37 Vermont, 255. 3 Spencer v. Williams, 2 Vermont, ^ Bicknell v. Hill, 33 Maine, 297. 209. w Gilmore v. McNeil, 46 Maine, 532. * Hutchinson v. Parkhurst, 1 Aikens, ^^ Jameson r. Ware, 6 Vermont, 610; 258. Gilmore v. McXeil, 46 ^ilaine, f.32. [331] § 374 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. back into the defendant's possession, no demand is necessary .^ And it was held, that a demand was not necessary, where the tenor of the receiptor's obligation was, that he should pay a sum of money, or keep the property safely, and redeliver it on demand ; and, if no demand be made, that he should redeliver it within thirty days after rendition of judgment in the suit, at a place named, and notify the officer of the delivery.^ It is not requisite that the demand be made by the officer who delivered the property to the bailee. The terms of the receipt are to be taken with reference to the subject-matter, and only import that the bailee holds the property in subjection to the attachment. Any officer, therefore, holding the execution in the case, suf- ficiently represents the bailor to make the demand, and a delivery to such officer would be in effect a delivery to the bailor.^ But if another than the attaching officer make the demand, he must make known his authority to do so, or the demand and refusal' will not be considered as evidence of a conversion.* A return on the execution that the officer had demanded of the receiptor a delivery of the property, is no evidence of a demand.^ § 874. In the New England States, an attachment continues in force from the time of the levy until a certain period — in most, thirty days, in Connecticut, sixty days — after judgment in favor of the plaintiff. If, within the specified period after the judgment, the plaintiff do not cause execution to be issued, and levied on the attached property, if accessible, or, if not accessi- 1 Webster i'. Coffin, 14 Mass. 196. it, until it is distinctly made known to 2 Shaw V. Laugliton, 20 Maine, 2C6 ; him. He has a right to bo satisfied that Humphreys v. Cobb, 22 Ibid. 380 ; Low the stranger, who comes to him to de- V. Dunham, 61 Ibid. 560; Hunter v. mand tiie goods, has a legal riglit to make Peaks, 74 Ibid. .303 ; Wentworth v. Leon- the demand, so that a delivery to liim will ard. 4 Cushing, 414; Hodskin v. Cox, 7 discliarge his obligations upon his receipt. Ibid. 471. Any sucli stranger who comes to liim 3 Davis I'. Miller, 1 Vermont, 9; Stew- and calls for a delivery of tlie property, art V. Platts, 20 New Ilanip. 476; Cross without making known the autliority he V. Brown, 41 Ibid. 283. has to receive it, may be treated as a 4 Walbridge i'. Smith, Brayton, 17-3. person without authority. Tiie duty of In Phelps V. Gilchrist, 8 Foster, 266, making known his autliority is on hira Bell, J., said : " The receiptor is not who assumes to make a claim under it. bound, by law, or by his contract, to de- Tlie party who is called upon is under no liver tlie property to any deputy sheriff duty to inquire whether he has autliority or other officer wlio may demand it. He or not." is not bound to take notice of tlie author- ^ Bicknell v. Hill, 33 Maine, 297. ity of otlier officers to have possession of CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 374 ble, have it demanded, witliin that time, of the officer who attached it, by the officer liaving the execution, the lien of the attachment is lost.^ The necessity for the issue of the execution within the prescribed period of time is not dispensed with by the fact that the attached property was stolen from the officer, and that he so returned on the writ. The plaintiff must at least show that he had entitled himself to levy on the property, if it had been faithfully kept.^ If the execution be, within that time, placed in the hands of the officer who made the attachment, he being still in office, that will be sufficient notice to him that the plaintiff claims to have the attached goods applied to satisfy the execution.^ And so far as the plaintiff's rights are concerned, the effect is the same if the execution be placed in the hands of the officer whose deputy made the attachment; for the law re- gards the officer and his deputy as the same."^ When the execu- tion is placed in the hands of another officer, it is necessary that within that time demand should be made upon the attaching of- ficer for the goods in order to hold him liable for them;^ unless the goods are in the hands of a receiptor, and the attaching officer turns over the receipt to the plaintiff, who places it, with the ex- ecution, in the hands of a different officer; in that case no demand upon the officer who made the attachment is necessary.^ It was attempted to hold the receiptor discharged, unless a de- mand for the goods was made upon him within the designated period after the judgment; but it was held, that if the officer's responsibility for the goods was fixed, so as to give him a right to demand them of the receiptor, the demand upon the latter might be made at any time before suit brought upon his receipt,^ In Vermont, however, it is required that the demand shall be made within the life of the execution.^ 1 Howard v. Smith, 12 Pick. 202 ; Col- 6 Moore v. Fargo, 112 Mass. 254. lins V. Smith, 10 Vermont, 0; Pearsons ^ Webster r. Coffin, 14 Mass. 196 ; Col- V. Tincker, 36 Maine, 384 ; Wetherell v. well v. Richards, 9 Gray, 374. Huglies, 45 Ibid. Gl ; Stackpole v. Hilton, 8 Bliss v. Stevens, 4 Vermont, 88 ; 121 Mass. 449. Allen i-. Carty, 19 Ibid. 6o; Carpenter 2 Blake r. Kimball, 106 Mass. 115. v. Snell, 87 Ibid. 255. The Supreme 3 Humphreys v. Cobb, 22 Maine, 380. Court of this State once held that the * Humphreys v. Cobb, 22 IVIaine, 380 ; demand must be made within thirty days Ayer v. Jameson, 9 Vermont, 363. after judgment. Strong v, Hoyt, 2 Tyler, 5 Humphreys v. Cobb, 22 Maine, 380 ; 208. Ayer v. Jameson, 9 Vermont, 363 ; Col- lins V. Smith, 16 Ibid. 9. [333] § 376 BAILMENT OF ATTACHED PROPERTY. [cnAP, XIV. § 375. Care should be taken that the execution under which the demand is made of the bailee be regular ; for it seems he is at liberty to inquire into that fact, and, where the action is against him for failing to deliver the property to be levied on to satisfy an irregular execution, he may take advantage of the irregularity to defeat the action. Thus, where an execution was placed in an officer's hands, returnable within sixty days, when by law it should have been returnable within one hundred and twenty days, and the officer, having demanded tlie goods of the bailee, brought suit on the receipt, alleging a demand tluit the execution might he levied on the goods, the declaration was, on demurrer, adjudged insufficient, because the execution was ir- regular, and the plaintiff had lost his claim on the goods by fail- ing to take out a regular execution.^ § 376. It does not appear that a personal demand upon the re- ceiptor is necessary. If it were, it would be in his power to elude it, and thus avoid his responsibility. One who makes a contract to deliver specific articles on demand, should be always ready at his dwelling-house or place of business. A demand upon him personally, for goods wdiich he could not carry about him,. would be liable to more reasonable objection than a demand at his abode, during his absence ; and, therefore, where a receiptor was absent from the State, it was determined that a demand made at his dwelling-house, of his wife, was sufficient.^ If the 1 Jameson f.Padflock, 14 Vermont, 491. property, no opportunity was afforded 2 Mason v. Briggs, 10 Mass. 453. Seel him to comply witii tlie notice. No rea- contra, Piielps v. Gilchrist, 8 Foster, 20G ; sonable construction can holil a receiptor where the Superior Court of New Hamp- bound to deliver the property at any time shire take the opposite ground, and say : and at any place where he may happen " A demand for these purposes is in its to be, and still less at any place wiiere, nature personal. It is a call by a person after a demand left at liis hou.se, he may authorized to receive property, for its liappen to lie able to find the attaching delivery, made upon the person who is officer, or his agent. It forms no part of bound to make such delivery. It must the contract of a depositary, a bailee to be such that the person required to de- keep property without compensation, to liver the property may at once discharge carry the property to the depositor, in himself by yielding to the claim and giv- order to return it. It is entirely suffi- ing up the property. Leaving a notice cicnt, that, having kept the property ac- at a party's house is not of such a char- cording to his contract in some reason- acter. ft gives no opportunity for the able and suitable place, he is there ready party to do wliat is demanded, and it to deliver it. If a demand is made at would be a sufTicient answer for the de- any other place, the bailee is entitled to fendant to make in such a case, that have reasonable time and opportimity to tliough he was notified to give up the make tlie delivery at that place, and to [334] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 377 a receiptor promise to deliver the attached property " at such time and place as the officer shall appoint," a demand for its present delivery, made at the receiptor's dwelling-house, is a sufficient appointment of the time and place.^ § 377. In New Hampshire, merely proving a demand upon the bailee for the goods, without bringing to his knowledge that they are demanded for the purpose of being subjected to execution in the case in which they were attached, does not establish a con- version by the bailee. The court say : " The receiptor is in no default, unless it appears that the object of the demand is brought at the time to his notice ; Avhich by no means necessaril}' results from the delivery of a written notice^ A great variety of circumstances may exist, which would prevent such a communi- cation from being at once attended to. No inference is to be drawn against a man from his silence or inaction, unless it appears that he was aware of what was said or done to affect his interest. The burden is upon the party who relies upon such evidence to establish the fact that th^ party against whom he desires an in- ference to be drawn, knew and understood at the time the facts necessary to justify such inference." ^ § 377 a. Where one becomes a receiptor for property attached in several cases, a demand upon him for the property in one of those cases is sufficient to fix his liability in all of them, if judg- ment and execution shall have been obtained in them, so as to make the officer liable for the forthcoming of the property on execution.-" In such case, if the receiptor deliver all the property in one suit, it will discharge his receipts in the others ; or if, out of the avails of the property, he pay the judgment in one case, he cannot be held to pay the judgment in another case to any greater extent than the balance in his hands of the value of the goods attached.* require the party who calls for the prop- Giltnore v. McNeil, 40 IMaine, 5o2 ; San- erty to be there to receive it. Any mode born v. Buswell, 61 New Ilaiiip. 573. of making the demand which precludes ^ Moore v. Fargo, 112 Mass. 254. tlie party from availing himself of these ^ Phelps v. Gilclirist, 8 Foster, 266. rights, is clearly insufficient, and tliere- See Moore v. Fargo, 112 Mass. 254. fore, the leaving a written demand at a ^ Hinckley v. Bridgham, 40 Maine, receiptor's house, is not evidence eitlier 450. of a breach of tlie receiptor's contract, or * Haynes v. Tenney, 45 New Hamp. of a conversion of the property." See 183. [885] § 381 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. § 378. Where several persons jointly become receiptors, a de- mand of the goods from any one of them is sufficient.^ In such a case, where it was agreed "that a demand on any one of them should be binding on the whole," and one of them indorsed on the receipt an acknowledgment that '' a due and legal demand " had been made on him by the officer, it was considered doubtful whether such an admission was conclusive upon the other re- ceiptors.'-^ § 879. Trover or replevin will lie against a receiptor, upon his refusal or neglect to comply with a demand for the delivery of the property ; 3 but assumpsit seems to be quite as much resorted to in such cases. Trespass will not lie.* Where the officer who created the bailment lays a second attachment on the property, while in the bailee's hands, as we have seen he may do,^ he may sustain the action, in virtue of such second attachment, though that under which the property was bailed may have been dis- solved.^ § 380. An acknowledgment by the bailee of a demand upon him by the officer, is sufficient evidence of a refusal to deliver the goods, without an accompanying admission of such refusal.^ The delivery of goods by the bailee to another person under an adverse claim of title, or a conveyance thereof by mortgage to pay his own debts, is equivalent to a conversion.^ But if the conversion be with the knowledge and assent of the officer, he cannot afterwards hold the receiptor liable on his contract.^ § 381. Of what defences may the bailee avail himself in an action on his receipt? It is not compoteni for him to show that the officer who levied the attachment was not legally qualified to act as such, if he was fully in the exercise of the office de facto ; ^^ nor can he set up that the goods were not attached, as stated in 1 Oris wold v. Plumb, 13 Mass. 298. * Sinclair v. Tarbox, 2 New Hamp. 135. 2 Fowk'S ('. Pindar, 19 Maine, 420. * Ante, §§ 2G9, 356. 3 Bisscll i: IIuntinRtnn, 2 Xew Ilamp. « Whittic-r v. Sniitli, 11 Mass. 211 ; 142; Carpill v. Webb, 10 Ibid. 190; Wliitney f. Farwell, 10 New Hamp. 0. Webb r. Steele, 13 Ibid. 2.']0 ; Holt v. ' Carpll ?;. Webb, 10 New Hamp. 109. Burbank, 47 Ibid. IGl ; Sibley v. Story, « Baker v. Fuller, 21 Pick. 318; Ste- 8 Vermont, 15 ; Pettes v. Marsb, 15 Ibid, vans v. Eames, 2 Foster, 568. 454 ; Dezell v. Odell. 3 Hill (N. Y.), 215 ; " Stevens v. Eames, 2 Foster, 5G8. Stevens v. Fames, 2 Foster, 6G8. ^'^ Taylor v. Niclio!s, 19 Vermont, 104. [S36] CHAP. XIV.] BAILME^^T OF ATTACHED PEOPERTY. § 381 the receipt, though the fact be that the attachment was a nom- inal one, and that the officer never did actually seize them ; i nor can he deny that the goods were delivered to him by the officer ; 2 nor can he impeach the judgment in the attachment suit,^ or show informality or irregularity in the attachment ; * nor will his liability be affected by a mistake in the receipt, in the name of the defendant, by the omission of his given name, when the whole name was stated in the writ.^ An amendment made by the plaintiff in the action in which the property was attached, but which did not tend to increase the liability of the defendant, will not discharge the receiptor from his accountability ; ^ but where, after an attachment, an additional plaintiff was introduced into the suit, it was held that, as the officer could not be made liable for the property to the plaintiff so brought in, he could not maintain an action on the receipt.' A discharge of the defendant in bankruptcy, after judgment against him in the attachment suit, will not discharge the bailee ; ^ even if the petition in bank- ruptcy was filed before judgment was rendered ;9 nor will the commitment of the debtor on execution, after demand made on the receiptor for the goods, and his failure to deliver them, though the plaintiff bring suit and recover judgment against the debtor and his surety, for an escape, on a bond given by them for the prison limits ; ^^ nor will the fact that the defendant has an execution against the plaintiff for a larger amount than that under which the goods are demanded ; " nor will an agreement between the plaintiff and the defendant in the attachment suit, that the former shall not enforce the receipt, and a forbearance accordingly to enforce it ;i- nor will the fact that after failing to comply with the demand of the officer within a proper time, the 1 Jewett V. Torrey, 11 Mass. 219; Ly- * Drew v. Livermore, 40 ]\Iaine, 266. man ;;. Lyman, Ibid. 317; Morrison v. See Stevens l'. Bailey, 58 New Hamp. Blodgett, 8 New Hamp. 238 ; Spencer v. 564. Williams, 2 Vermont, 209 ; Lowry v. 5 Hunter v. Peaks, 74 Maine, 36.3. Cady, 4 Ibid. 504; Allen v. Butler, 9 6 Smith r. Brown, 14 New Hamp. 67 ; Ibid. 122 ; Stimson v. Ward, 47 Ibid. Miller v. Clark, 8 Pick. 412 ; Laighton v. 624; Bowley v. Angire, 49 ILid. 41; Lord, 9 Foster, 237 ; Hunter y. Peaks, 74 Piiillips V. Hall, 8 Wendell, GIO ; Webb Maine, 363. V. Steele, 13 New Hamp. 230 ; Howes v. ~ Moulton v. Chapin, 28 Maine, 505. Spicer, 23 Vermont, 508. 8 Smith v. Brown, 14 New Hamp. 67. 2 Spencer v. Williams, 2 Vermont, ^ Towie v. Robinson, 15 New Hamp. 209; Allen v. Butler, 9 Ibid. 122; Bell v. 408 ; Lamprey v. Leavitt, 20 Ibid. 514. Shafer, 58 Wisconsin, 223. 1^ Twining v. Foot, 5 Gushing, 512. 3 Brown v. Atwell, 31 Maine, 351. " Jenney v. Rodman, 16 Mass. 464. 12 Ives V. Hamlin, 5 Gushing, 534. 22 [337] 8 382 BAILMENT OF ATTACHED PHOPERTY. [CHAP. XIV. bailee at a subsequent time showed the officer the property, and told him to take it; ^ nor will the fact that the plaintiff, after he obtained judgment and execution, received from the receiptor the proceeds of a sale of the attached property, made by the latter without the knowledge of the defendant or the officer.^ The question has arisen, whether a bailee can set up as a defence to an action on his receipt, that the property was not by law subject to attacliment ; and it has been held to depend upon the officer's liability to the defendant for a return of the prop- erty to him. If he is so liable, the bailee cannot make such a defence ; ^ but if the bailee gave the property back into the pos- session of the defendant, the officer is no longer liable to the latter for it, and the bailee may discharge his liability to him by showing that the property was exempt by law from attachment.* In the cases in which these positions were taken, the receipts were merely an engagement to deliver to the officer certain prop- erty attached by him, — a simple bailment. But in a case where the receiptors agreed in the receipt that the property attached was the defendant's, and was of a specified value, and that they would on demand deliver the property to the officer, or, in case of their neglecting or refusing to deliver it, would pay to him on demand the amount of debt and costs which should be recovered in the suit; it was held, that the receiptors could not set up as a defence to an action by the officer on the receipt, either that the property was not the defendant's, or that it was not subject to attachment.^ And where a mail wagon and horses, which were in use upon a mail route in carrying the mail, were attached and delivered to a receiptor, who was afterwards sued on his re- ceipt ; it was held, that the attachment was illegal ; that the offi- cer was not liable to the creditor for the property; and that the bailee might set up the illegality of the attachment as a defence against his receipt.^ § 382. If an officer, after having delivered property to a re- ceiptor, seize it under another attachment, and take it out of the 1 Scott V. Whittemore, 7 Foster, 009; ^ Bacon v. Daniels, 116 Mass. 474; Hill i; Wiggin, 11 Ibid. -iO-l Stevens v. Stevens, 39 Conn. 4<4. 1 lus 2 Torrey v Otis, G7 Maine, 573. is the same ground as that taken m other 8 Smith V. Cudworth, 24 Piclc. 196. States in regard to defences against bail * Thayer v. Hunt, 2 Allen, 449 ; Stone bonds. See ante, § 32.3. V. Sleeper, 59 New Hami.. 205. " H'lrmon v. Moore, 59 Maine, 4l8. [338] CHAP. XIV.] BAILMENT OP ATTACHED PROPERTY. § 384 custody of the receiptor, this puts an end to the contract of bail- ment, and the officer cannot recover on tlie receipt.^ But if the bailee himself, after the bailment, levy an attachment on the goods and sell them, this is no defence to the action on his re- ceipt, nor can it be set up in mitigation of damages.- Where, however, before the bailment, the property had been attached in another suit against the same defendant, and upon the execution in that case had been seized and sold, the bailee delivering it to the officer for that purpose, it was held, that, as the first attach- ing officer had a better title to it than the second, the latter could not maintain an action on the receipt taken by him. And it was considered to be immaterial whether the first attachment was fraudulent or not, if the bailee was not a party to the fraud ; or whether the bailee had notice or not that the plaintiff in the suit in which he became bailee, intended to contest the first attachment on the ground of fraud. ^ § 383. Where a receipt for attached property bound the makers to return the property, or, at their choice, to pay the officer cer- tain sums, when called for, after judgment should be recovered on the demands on which the property was attached ; and it was shown that soon after the execution of the receipt the property was sold by the officer, with the consent of the plaintiff, defend- ant, and receiptor, and the money paid into the hands of the receiptor ; it was held, that the sale was an implied rescinding of the contract, and that the officer could neither maintain trover for the property, nor assumpsit upon the receipt for the money.* § 384. A dissolution of the attachment, and a subsequent de- livery of bailed property by the bailee to the person entitled to it, discharge the bailee from liability to the officer. Therefore, where, under the insolvent law of Massachusetts, an assignment by an insolvent is declared to vest all his property in the assignees, " although the same may be attached on mesne process as the property of said del)tor ; and such assignment shall be effectual to pass all the said estate, and dissolve any such attachment;" and a defendant, after an attachment and bailment of his prop- erty, made an assignment in insolvency, and after the assignment 1 Beach v. Abbott, 4 Vermont, 605; ^ Webster v. Harper, 7 New Hamp. Eood V. Scott, 5 Ibid. 2G3. 594. 2 Whittier v. Smith, 11 Mass. 211. * Kelly v. Dexter, 15 Vermont, .310. [339] § 387 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. the liailee delivered the property over to the assignees ; it was held, that he was not liable on his receipt.^ So, where, by the operation of § 14 of the general bankrupt act of 1867, an attach- ment taken out within four months previous to the act of bank- ruptcy of the defendant, was dissolved, it was held, that the officer could not enforce a receiptor's obligation for the return of the property .2 § 385. Where a horse was attached and delivered to a bailee, and before the expiration of the time limited, for its delivery it died, without any fault of the bailee, he was held not to be an- swerable for its value.^ In such case no fault on his part is to be presumed. The presumption is the other way ; and if it is sought to charge him for fault, such fault must be proved.* But where the bailee permitted the horse to be sold, by the defendant to a third person, who took the same into his possession, and the horse then died, its death was held, to be no defence to an action on the bailee's receipt.^. § 386. An officer is not bound to accept from a receiptor a different article from that attached, though it be of the same description, quality, and quantity .^ And if a receiptor, when the attached property is demanded of him by the officer, deliver to him other like property, which is sold by the officer, and being insufficient, the officer sue him on the receipt, it is no defence for the receiptor to say that the property delivered was in lieu of that attached, unless the officer expressly agreed it should be so received. In such case it is the duty of the bailee to redeliver the same property he had received, or pay the value of it. If he substituted other property, which was sold on the execution, he would be liable still for the property attached ; but the proceeds of that sold would extinguish that liability pro tantoJ § 387. Where a partnership gave a receipt for property which had been attached on a writ against a former partnership, cora- 1 Spraffue v. Wheiitlanrl, .3 Metcalf, * Cross r. Brown, 41 New Ilamp. 283. 416 ; BuUerfield v. (Converse, 10 Gushing, ^ Tliayer v. Hunt, 2 Allen, 449. 817; Sliumway v. Carpenter, 13 Allen, « Scott v. Wliittoniore, 7 Foster, 800; Q8 Anthony ?'. Coinstock, 1 Rhode Island, 2 Mitchell V. Gooch, CO Maine, 110. 454 ; Gilmore v. McNeil, 40 Maine, 532. 3 Shaw V. Laughton, 20 Maine, 2G6 ; ' Sewell r. Sowles, 13 Vermont, 171; Ante, § 341. Smith v. Mitchell, 31 Maine, 287. [340] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 389 posed in part of the same persons, the debts of which the re- ceiptors, as successors of the former firm, had agreed to pa}^ the receiptors, when sued on the receipt, were not allowed to contest its validity on the ground that the property of the new partner- ship was not liable to attachment upon a demand against the old firm.i § 388. We have seen 2 that the right of the officer to retake bailed property from the possession of the bailee depends on his liability therefor, either to the plaintiff, the defendant, or another creditor of the defendant, who has, through the same officer, laid a second attachment on the property, while it was sliii in the bailee's possession. The same rule applies where the officer sues on the receipt; whether the receipt be a simple contract, or a sealed instrument.^ The law recognizes tlje bailee's right to permit the property to go back into the defendant's possession ; and where he does so, considers his receipt, in effect, as a contract to pay the demand upon which the property was attached ; '^ and it is, therefore, well settled that, in such case, the bailee's liability to the officer, where there is only one attachment, depends alto- gether upon the officer's liability to the plaintiff ; and that, if the officer be no longer liable to the plaintiff, he cannot maintain an action on the receipt.^ And where the officer, no longer liable to either plaintiff or defendant in the action in which the bailment was created, seeks to enforce the receipt for the benefit of a sec- ond attaching creditor, it is a sufficient defence, that, before the second attachment was made, the property had gone into the defendant's possession, and that the first attachment was satisfied before the officer demanded the property of the bailee.^ § 389. If an officer attach property as the defendant's he may notwithstanding show, in an action b}^ the plaintiff against him for not having it in hand to satisfy the execution in the case, that 1 Morrison v. Blodgett, 8 New Hamp. v. Farley, 12 Ibid. 328 ; Sawj-er v. IMason, 238. 19 Ibid" 49; Moulton r. Cliapin, 28 Ibid. 2 Ante, §§ 353, 354, .355. 505 ; Plaisted v. Hoar, 45 Ibid. 380 ; Har- 3 Clark V. Gaylord, 24 Conn. 484; mon v. Mnore, 59 Ibid. 428; Lowry v. Fowler v. Bishop, 31 Ibid. 500 ; Drayton Stevens, 8 Vermont, 113; Jameson v. V. Merritt, 33 Ibid. 184 ; Sanf ord v. Pond, Paddock, 14 Ibid. 491 ; Frost v. Kellogg, 37 Ibid. 588. 23 Ibid. 308. * Whitney I'. Farwell, 10 Xew Hamp. 9. ^ Wliitney v. Farwell, 10 New Hamp. 5 Fisher v. Bartlett, 8 Maine, 122; Carr 9 ; Hill v. Wiggin, 11 Foster, 292. [341] if § 390 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. it did not in fact belong to the defendant.^ This proceeds from the obvious principle, that the officer shall not be responsible to the plaintiff for not doing that which he was under no legal obligation to do ; and as he is under no obligation to keep the property of one man to answer the debt of another, he cannot be made liable for not doing so. If, then, in such a case tlie property has been bailed, it being, as we have seen, a well-settled principle tliat the bailee's liability to the officer depends upon the officer's account- ability for the property to some one eke, it follows, that, where tlie property is not the defendant's, the officer should not be allowed to hold the receiptor answerable for it, if it has gone into the possession of the rightful owner. The mere fact that, at the time of the attachment, the property did not belong to the de- fendant, will not, of itself, be a sufficient defence against the bailee's liability on his receipt ; for the officer, being liable to the true owner, must obtain possession of the property in order to restore it.^ But where it appears not only that the property be- longed, but has been delivered, to a third person, it is unques- tionable that the officer cannot maintain an action against the bailee for it.^ In Louisiana, it would seem not to be necessary to show that the property had gone back into the hands of the actual owner, if it was in the hands of those who were entitled to the possession of it ; as where it was consigned by tlie owner to commission merchants, and the latter took it from the possession of the officer, upon executing a bond to return it ; there, the commission merchants being entitled to retain their possession, which was in legal contemplation the possession of the owner, would not be required to show that the owner had the actual custody of the property.^ § 390. Where, however, in a receipt which admitted the prop- erty to have been attached as the defendant's, the following 1 Ante, § 204; Fuller v. Holden, 4 ^ Learned v. Bryant, 13 Mass. 224; Mass. 408; Denny v. Willarrl, 11 Pick. Fislier r. Bartlett, 8 Maine, 122; Sawyer 519; Canada v. Soutliwick, IG Ibid. 55G; v. Mason, I'J Ibid. 49; Stanley v. Drink- Dewey v. Field, 4 Metcalf, 381; Sawyer water, 43 Ibid. 408; Quine v. Mayes, 2 u. Mason, 19 Maine, 49; Burt y. Perkins, Robinson (La.), 510; Latbrop v. Cook, 9 Gray, 317. 14 Maine, 414; Scott v. AVliittcmore, 7 2 Fisher v. Bartlett, 8 Maine, 122 ; Foster, 300 ; Clark v. Gaylord, 24 Conn. Scott I'. Wbittemorc, 7 Foster, 309 ; Clark 434 ; Burt r. Perkins, 9 Gray, 317. V. Gaylord, 24 Conn. 484. * Quint' v. Mayes, 2 Robinson (La.), 610. [342] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 392 clause was embodied, — " and we further agree that this receipt shall be conclusive evidence against us as to our receipt of said property, its value before mentioned, and our liability under all circumstances to said officer for the full sura above mentioned ; " — it was held, that the receiptors would not be allowed to avoid their liability, by proving that the property was not the defendant's.^ § 391. Is the receiptor estopped by his receipt from asserting property in himself in the goods attached ? This depends upon the circumstances under which he undertakes to assert it. If sued by the defendant for a return of the goods, after dissolution of the attachment, his receipt does not conclude him from show- ing that the}' belonged to himself, and not to the defendant.^ If the receiptor, after having delivered up the property according to his contract, bring replevin against the officer for it, he is not estopped from maintaining the action, b}* reason of having given the receipt, and therein having acknowledged that the articles attached were the property of the defendant ; for the engagement was performed, and the estoppel could not be permitted to extend beyond the terms and duration of the contract.^ § 392. But as between him and the officer, in an action by the latter on the receipt, where the receipt admits the goods to be the defendant's, or to have been attached as his, it has been repeatedly held, that the bailee is estopped by the receipt from setting up propert}^ in himself.'^ And so in New York, where the receipt contained no such admission, but simply an acknowl- edgment of having received the property, and a promise to rede- liver it at a certain time and place.^ Later cases, however, qualify this general rule. While it is conceded on all hands that a receiptor who conceals from the officer his ownership of the prop- erty, and suffers it to be attached as the defendant's, thereby 1 Penobscot Boom Corporation v. Wil- v. Hamilton, 15 Ibid. 40; Dewey v. Field, kins, 27 Maine, 345. 4 Metcalf. 381; Sawyer v. Mason, 19 - Barron v. Cobleigh, 11 New Hamp. JMaine, 49 ; Penobscot Boom Corporation 557. V. Wilkins, 27 Ibid. 345; Barron v. Cob- 3 Johns V. Church, 12 Pick. 557; La- leigh, 11 New Hamp. 557; Drew ;•. Liv- throp V. Cook, 14 Maine, 414. ermore, 40 Maine, 266 ; Potter v. Sewall, * Johns V. Church, 12 Pick. 557 ; Eob- 54 Ibid. 142. inson v. Mansfield, 13 Ibid. 139; Bursley ^ Dezcll v. Odell, 3 Hill (N. Y.), 215. [343] § 394 BAILMENT OF ATTACHED PKOPEKTY. [UHAP, XIV. preventing the officer, perhaps, from attaching other property, is precluded, when sued on the receipt, from setting up property in himself ; yet it is considered to be materially different where he makes known to the officer, at the time of the attachment, that the property is his, and not the defendant's. In such case it is held in jMassachusetts, that the bailee may set up property in himself, not as a bar to the action, but as showing the officer entitled only to nominal damages ; ^ while in Vermont and in California it is considered to constitute a full defence.^ And in New Hampshire, the giving of a receipt for the property by the owner of it, is no bar to an action of trespass by him against the attaching officer.^ § 393. The only remaining topic in this connection is the meas- ure of the officer's recovery in the action against the bailee. Whether he shall recover only nominal damages, or the full value of the property, or the amount of the plaintiff's demand, not exceeding the value of the property, is to be determined by the facts of each case. Where, at the institution of his suit, he lias a full right of action against the receiptor, but afterward, and before obtaining judgment, he is, by the plaintiff's failure to take the needful steps, released from responsibility to him, and at the same time the property has gone back into the defendant's pos- session ; as he is no longer liable to either plaintiff or defendant, he can recover only nominal damages against the receiptor.* § 394. Where the value of the property is stated in the receipt, it is not to be considered as descriptive of the property, but as a part of the contract, and as constituting a stipulation for a rule of damages against the receiptor in case of a non-delivery of the property ; and hence an officer will not be allowed, in an action on the receipt, whether in form ex contractu or ex delicto, to give evidence that the property was of greater value than that stated in the receipt ;^ and of course the receiptor cannot give evidence 1 Eursley v. Ilntnilton. 15 Pick. 40. Moulton r. Clmpin, 28 Ibid. 605; Farn- 2 A(liini.s ?'. Fo.x, 17 Vermont, 3(51 ; liain v. Cram, 15 IbiJ. 70. Eleven v. Freer, 10 California, 172. See * Parsons v. Strong, 13 Vermont, 235; Jones u. Gilbert, 1.3 Conn. 507. Drown v. Smith, 3 Now Ilamp. 299; 8 Morse v. Ilurd,' 17 New Ilamp. 24G. Remick i-. Atkin.^on, 11 Ibid. 250; Jones < Norris v. Brldgham, 14 Maine, 429; r. Gilbert, 13 Conn. 507; Stevens v. Ste- vens, 39 Ibid. 474. [344] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 395 a that it Wcas of less value.^ In such case, where all the articles are valued at a gross sum, the receiptor cannot avoid his liability, 23ro tanto, by tendering to the officer part of the goods, unless he has a reasonable excuse for not delivering the residue.^ But if the value of each article is separately stated in the receipt, and the bailee tenders part of them to the officer, the latter can recover only for the articles not tendered, according to their admitted value .^ § 395. Whether the officer can recover the full value of the property, depends upon his being liable to that extent for it to some one else. If the amount of the judgment in the attach- ment suit be greater than the value of the propert}', then the measure of the recovery is the value of the property."^ If the property has gone back to the defendant's possession, and its value exceeded the amount of the judgment in the attachment suit, the rule of damages is the amount of the judgment and costs ;^ but if the amount of the attachments upon it is less than the value stipulated, the recovery cannot be for a greater amount than that necessai'y to satisfy the attachments.*^ But where the bailee has converted the property to his own use, or still holds it, the officer is not onl}^ authorized, but obliged, to take judgment for the full value ; and if he take it for less, he will be liable to the defendant for the deficiency.'^ § 395 a. It was attempted, in New Hampshire, but without success, to modify the rule stated in the next preceding section, that if the amount of the judgment in the attachment suit be greater than the value of the property, then the measure of the recovery is the value of the property. The case was this : an officer levied an attachment on a quantity of personal property, which was claimed by a third person, who obtained a receiptor for it, and in the receipt the property was valued in gross at $800. The claimant afterwards disposed of the whole property. 1 Smith t;. Mitchell, 31 Maine, 287. « Farnham v. Cram, 15 Maine, 79; 2 Drown v. Smith, 3 New Hamp. 299; Hunter v. Peaks, 74 Ibid. 363. Kemick v. Atkinson, 11 Ibid. 256. • Bissell v. Huntington, 2 New Hamp, 3 Remick D.Atkinson, 11 New Hamp. 142; Whitney v. Farwell, 10 Ibid. 9; 256. Sawyer v. Mason, 19 Maine, 49; CatUn * Cross V. Brown, 41 New Hamp. 283. v. Lowrey, 1 D. Chipman, 396. ^ Cross V. Brown, 41 New Plamp. 283. [345] § 396 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. Judgment havins^ been obtained in the attachment suit for $898.83, the officer brought trover against the bailee for a part of the articles ; and it was agreed between the parties, for the purposes of the case, that the whole property embraced in the receipt was worth much more than $800, and that the articles for which the officer sued the bailee were also worth much more than that sum. The officer claimed that he was entitled to recover, either the full value of the articles for which he sued, not exceeding the amount of the judgment in the attachment suit, or the amount stated in the receipt as the value of all the property attached, with interest after demand. On the other hand, the bailee claimed that the valuation stated in the receipt was conclusive on the officer, and that he was entitled to recover only such proportion of the $800 and interest as the property for which he brought trover bore to the whole property receipted for. The court held, that the bailee's position was not tenable, and that the officer should recover the amount of the value stated in the receipt.^ § 396. The judgment which an officer may recover against a receiptor is merely collateral to the debt due from the defendant to the plaintiff in the attachment, and for the benefit and security of the officer ; and when the defendant has no claim on him, and his obligation to the plaintiff is removed, by the payment of the debt for which the attachment issued, the judgment becomes a mere dead letter, and cannot be enforced.^ But if the debt be satisfied after the officer has sued on the receipt, that will not bar his action, but he will still be entitled to recover nominal damages.^ 1 Spear v. Hill, 52 New Hamp. 323. 2 Paddock v. Palmer, 19 Vermont, 581 ; Brown v. Crockett, 22 Maine, 537. 3 Stewart v. Plaits, 20 New Ilauip. 476. [346] CHAP. XV.] ATTACHMENTS IMPROVIDENTLY ISSUED, ETC. 397 CHAPTER XV. ATTACHMENTS IMPROVIDENTLY ISSUED, AND THE MEANS OF DEFEATING THEM. § 397. Issuing an attachment iraprovidently, is to be distin- guished from issuing it irregularly. In the latter case, the defect appears upon the face of the proceedings, and may be taken advantage of by a motion to quash or dissolve. In the former, all the preliminary steps may be regular, and yet the attachment have been improvidently granted, because the allega- tions on which it issued were untrue. Such is the difference between these two classes of cases.^ 1 In Lovier v. Gilpin, 6 Dana, 321, the Court of Appeals of Kentucky use the following language : " Upon the face of the record of this attachment, that is, upon the face of the bond and attachment itself, there can he no question, nor is any- made, as to its having been issued by the proper justice, in the proper county, and in a proper case, so far as the case is to be made out to the justice, in order to au- thorize the emanation of the process, or so far as it is to be stated in the process itself, in order to show its validity. In issuing the attachment, therefore, the justice has complied with every requisi- tion of the law, and upon the face of the record there is no want of jurisdiction to issue process in the case ; no misjudgment in deciding upon tlie facts necessary to authorize the process ; no excess of juris- diction, either in the nature of the process, issued, or in issuing it in a case in which the law does not authorize such process to be sued out. For the justice is not made the judge of the facts, nor is he to inquire into them, except as thej' are pre- sented in tlie statement of the applicant for the writ, and as thus presented they are sufficient. . . . The authority of the justice does not depend in any degree upon the truth of the statertient made by the applicant, and on the ground of which the attachment issues, but upon tlie suffi- ciency of the statement itself when com- pared with the law. To prove the falsity of a statement which is sufficient in itself, does not, therefore, disprove the autho- rity or jurisdiction of the justice, nor prove nor make the process void for want of authority. Such proof makes out a case of process unduly or improperly issued, not on the ground of want of au- thority in the officer to issue it, but on the ground that the statement which gave the authority in the particular case is un- true as to a fact, which, if truly stated, would have shown that there was no authority in the particular case. Such proof might perhaps be sufficient, in a direct proceeding for the purpose, to authorize the annulment or vacation of the process ; it would certainly be suffi- cient to abate the attachment on proper pleading. But until it is set aside, or in some manner annulled, it remains a part of the record of the proceeding, — functus officio, it is true, but unaffected by the extraneous matter, and being perfect and regular in itself, and still showing on its face that it was issued by legal authority, [347] § 400 ATTACHMENTS IMPROVIDENTLY ISSUED, [CHAP. XV. § 398. Where, as in the New Eiighand States, under the ordi- nary process of summons an attachment may be made, if the plaintiff so directs, it is of no importance to the defendant to be allowed to impeach the attachment for improvidence; but where, as elsewhere is universally the case, an affidavit alleging certain facts is required, to authorize an attachment to issue, this privi- leo'e is of great value to defendants, who might otherwise be remedilessly ruined by the recklessness or bad faith of creditors ; and it is in many States secured to them by statute. § 399. There can hardly be room for doubt that, without the aid of express statutory provisions, a defendant may, in one form or another, contest the truth of the grounds alleged by the plain- tiff for obtaining the attachment. In Mississippi, ^ Arkansas,^ and Texas,3 it is not so ; but, as the following review Avill exhibit, this doctrine is upheld in New York, Pennsylvania, New Jersey, Maryland, South Carolina, Tennessee, Kentucky, Indiana, and Illinois. The modes by which the contest may be instituted are different, as will be seen in the succeeding sections, setting forth as well those used without as those used with statutory authority. § 399 a. The right of the defendant to the dissolution of an attachment is not affected by the fact that later attachments have also been levied. He is entitled to his opportunity to impeach the eases, one by one, as they were instituted.* § 400. In New York, prior to the adoption of the Code of Procedure, the mode of defeating an attachment improvidently issued, was by supersedeas^ obtained from the Supreme Court, on it is, therefore, still sufficient to justify decided by a jury. Brown v. Massey, 3 the immediate acts wliich it commanded, Stewart, 220. This opinion, liowever, though not tending to justify the illegal was afterwards in effect overruled in act ol" obtaining it upon a false statement, Middlebrook v. Ames, 5 Stewart & Porter, or the actual injury consequent upon that .158. Subsequently, by statute, the defend- act." ant was precluded from contesting the 1 Smith V. Herring, 10 Smedes & Mar- truth of the affidavit ; and though the stat- shall, 518. ute referred only to original attachments, 2 Taylor v. Kicards, 9 Arkansas, 378; it was lield, in Jones ;■. O'Donnell, 9 Ma- Mandel v. Pcet, 18 Ibid. 23G. bama, 0'.)5, to apply as well to an ancil- 3 Cioud V. Smith, 1 Te.xas, Gil. In lary attachment, taken out in, and in aid Alabama, it was at one time held that of, a suit already instituted by summons, the allegations of the affidavit were trav- * Schall i'. Bly, 43 Michigan, 401; crsable, and might be investigated and Sheldon v. Stewart, Ibid. 574. [348] CHAP. XY.] AND THE MEANS OF DEFEATING THEM. § 400 affidavits filed by the defendant, showing the falsity of that on which the writ was obtained. That court, at an early day, asserted its jurisdiction in such cases,^ and afterwards constantly exercised it. Therefore, where an attachment was obtained on an allegation that the defendant had departed the State, with the intent of avoiding arrest, and of defrauding his creditors, a super- sedeas was awarded, upon the relation of the defendant, showing that he had not departed, the State, but had openly made a jour- ney within it.2 So, where, from the evidence given by the defendants, it appeared that they had not absconded, and were not concealed, at the time the petition for an attachment was j)resented.3 In this State, since the adoption of the Code of Procedure, the courts have asserted their inherent right to control their own process, and to inquire into the grounds upon which it has issued, and to receive proofs in relation thereto, on special motion, though the Code gives no authority for such a proceeding.* On such a motion the defendant may introduce affidavits against, and the plaintiff supplemental affidavits in support of, the ground of attachment sworn to in the first instance ; and if by all the affidavits sufficient appears to warrant the issuing of the attachment, the court will not set it aside for any insufficiency in the affidavit on which it issued.^ A motion to vacate an attachment because the ground upon which it was issued was not true, must, in that State, be made at the first opportunit}', or an excuse be shown for not so making it. It comes too late after judgment.*^ But where it was made befo}'e judgment, and was referred by the court to a referee to hear the proofs, and report his opinion thereon, and before his report was made judgment was entered, it was lield, that the motion might be heard and passed upon after the entry of the judgment.'^ 1 Lenox v. Rowland, .3 Caines, 323. 6 Lawrence v. Jones, 15 Abbott Pract. See Orton i'. Noonan, 27 Wisconsin, 572. 110; Swezey v. Bartiett, 3 Ibirl. n. a. 2 Ex parte Ciiipman, 1 Wendell, 66. 444. See Foster v. Dryfus, IG Indiana, 3 Matter of Warner, 3 Wendell, 424. 158. •1 Morgan v. Avery, 7 Barbour, 656; 1 Thompson i>. Culver, 15 Abbott Pr.act. Genin v. Tompkins, 12 Ibid. 265. 97 ; 38 Barbour, 442; 24 Howard Pract 5 Cammann v. Tompkins, 1 Code Re- 286. ports, 12 ; St. Amant v. De Beixcedon, 3 Sandford Sup. Ct. 703. [349] § 404 ATTACHMENTS IMPROVIDENTLY ISSUED, [CHAP. XV. § 401. Ill Pennsylvania, it was early held, that the court would make inquiry in attachment cases into the plaintiff's cause of action, as in cases of capias^ and where a sufficient cause did not appear, would dissolve the attachment.^ This right of in- quiry in such cases is now firmly established in that State, and the practice has been regulated by several reported decisions.^ It is the practice there, too, to allow the defendant in a domestic attachment to show by affidavits that he had not absconded, as alleged, and upon the same being satisfactorily shown, to dissolve the attachment. In a case of this description, the court said, " The affidavit on which a domestic attachment is grounded, has never been held to be conclusive ; such a doctrine w^ould be attended with the most pernicious consequences ; " and inti- mated that the plaintiff might sustain his affidavit by contrary proofs to those presented by the defendant.^ § 402. In New Jersey, the power and duty of the court to inquire into the misuse and abuse of this process, was declared to rest on the most ancient and established principles, and to be as applicable to writs of attachment as to any other process. There the truth of the allegations on which the writ issues is brought up on motion to dissolve the attachment, sustained by affidavits.^ § 403. In Maryland, it was decided, that every fact is cogniza- ble by the court, which would show that the attachment issued improvidently ; and evidence dehors the proceedings might be resorted to, and proof made to the court ; ^ either under a motion to quash or under a plea.^ § 404. In South Carolina, the defendant may contest the alle- gations in the affidavit, and if successful in disproving them, the attachment will be dissolved. As to the mode of accomplishing this, the decisions appear not to be quite consistent. In a case 1 Vienne v. McCarty, 1 Dallas, 1G5. Marsh, 1 Zabriskie, 4?>4 ; PhiUipsburgh 2 Vienne v. McCarty, 1 Dallas, 105, Bank f. Lackawanna R. K. Co., 3 Dutclier, note a. Roe Ferris v. Carlton, 8 Pliila- 200. delphia, 549. '" Campbell v. Morris, 3 Harris & Mc- 8 Boyes v. Coppinfrer, 1 Yeates, 277. Henry, 535. * Branson v. Siiinn, 1 Green, 250; o Lambden p. Bowie, 2 Maryland, 8-34 ; City Bank r. Merrit, Ibid. 131 ; Day v. Cover i;. Barnos, 15 Ibid. 576; Ilardesty Bennett, 3 Harrison, 287 ; Shadduck v. v. Campbell, 29 Ibid. 633. [350] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. § 406 of domestic attachment, it was held, that " a shorthand method of quashmg by motion " was inadmissible. ^ Afterwards, in a case of foreign attachment, this course was allowed ; ^ though in a sub- sequent case it was considered that, whatever may have been the practice, a judge ought, in a doubtful case, to refuse a motion to quash an attachment by an affidavit ; and the propriety of a plea in abatement, and a trial of the issue by a jury, was recognized.^ But a motion to dissolve an attachment, supported by affidavits, was heard before the judge, and the propriety of that mode of proceeding was not questioned.* § 405. In Tennessee,^ Kentucky,^ Indiana,^ and Illinois,^ it is held, that the defendant may plead in abatement, traversing the allegations of the affidavit. § 406. The preceding sections show the views of this subject entertained by the courts of the several States in which it has been considered, unconnected with statutory provisions. Before proceeding to refer to such provisions in other States, and the decisions thereunder, it should be remarked, that in whatever mode a contest of the truth of the affidavit may be allowed, it should precede the defendant's appearance and plea to the action. If he have already pleaded to the action, or do so at the same time that he pleads to the affidavit, or afterwards, he cannot con- trovert the affidavit.^ And in no case will he be allowed to give evidence to contradict the affidavit, unless he have pleaded to it in abatement, where that is the mode of contesting it.^*^ And in Illinois, applying the common-law rule in regard to pleas in abatement, it was held, that this plea could not be filed after a continuance.^! 1 Havis V. Trapp, 2 Nott & McCord, '^ Voorhees v. Hoagland, 6 Blackford, 130. 232; Abbott v. Warriner, 7 Ibid. 570; 2 Wheeler v. Degnan, 2 Nott & Mc- Excelsior Fork Co. v. Lukens, 38 Indiana, Cord, 323. 488. 3 Shrewsbury v. Pearson, 1 McCord, ^ Bates v. Jenkins, 1 Illinois (Breese), 331. Appendix, 25. * Claussen v. Easterling, 19 South ^ Mcggs y. Shaffer, Hardin, Go; Linds- Carolina, 515. ley v. Malone, 23 Penn. State. 24 ; Ilatry 5 Harris v. Taylor, 3 Sneed, 536 ; v. Shuman, 13 Missouri, 547 ; Cannon Isaacks v. Edwards, 7 Humphreys, 465 ; v. McManus, 17 Ibid. 345 ; Collins v. Dunn V. Myres, 3 Yerger, 414. Nichols, 7 Indiana, 447. Sed contra, 6 Meggs t'. Siiaffer, Hardin, 65 ; Moore Hawkins i'. Albriglit, 70 lUinois, 87. V. Hawkins, 6 Dana, 289; Lovier v. Gil- ^'^ Moore v. Hawkins, G Dana, 289. pin, Ibid. 321. n Archer v. Claflin, 31 Illinois, 806. [351] § 408 ATTACHMENTS IMPROVIDENTLY ISSUED, [CHAP. XV. § 406 a. Where an attachment has been vacated by the court, after an inquiry into the merits of the ground upon which it was issued, another attachment by the same party, on the same ground, where no new facts are presented, cannot be sustained. "The defendant is not to be continually vexed by the same ap- plication ; nor are the same or different tribunals to hear and decide upon the same matters more than once." ^ § 407. A plea in abatement, where allowed, must directly and fully negative the allegations of the afBdavit. Thus, where the affidavit stated that the defendant " was removing and about to remove his property from the State," and the defendant pleaded that " he was not removing from the State, nor was he removing his property from the State," it was, on demurrer, considered to be no answer to the affidavit.^ But, where an affidavit contained several grounds of attachment, a general denial of the existence of any of the facts alleged was held sufficient.^ § 408. In Louisiana, the Code of Practice provides that the defendant may prove in a summary way, after having given due notice in writing to the adverse party, that the allegations on which the order for attachment had been obtained, were false ; in which case the attachment will be dissolved.* And it is not necessary that such a defence should be set up by plea or excep- tion.s It is considered there, that the affidavit has a greater effect than merely enabling the party to obtain process against the defendant, and that in making proof under such a defence, the defendant must show sufficient to throw the burden of proof on the plaintiff ; 6 and in a case where the evidence on behalf of the defendant effected no more than merely making the matter doubtful, it was held that the attachment should not be dis- solved.7 ii^ Nebraska, however, when the cause of attachment is denied by the defendant, the burden of proof is thrown upon the plaintik, and if nothing appear to authorize greater credit 1 Sclilcmmer v. Myerstoin, 19 Howard ^ Read v. Ware. 2 Louisiana Annual, Pract. 412. 498. - Wliite V. Wilson, 10 Illinois (5 Gil- '^ Bnimgard )•. Anderson, IG Louisiana, man), 21. 341 ; Offut v. Edwards, 9 Robinson (La.), 3 Armstrong v. Blodgett, 33 Wiscon- 90; Simons r. Jacobs, lo Louisiana An- sin, 284. ni'al. ^-5- * Louisiana Code of Practice, Art. 258. ^ Moore iv Angiolcttc, 12 Martin, 632. [352] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. § 409 to be given to his statements than to those of the defendant, the attachment will be discharged.^ In Ohio, too, a denial by the defendant of the ground of attachment, throws the burden of proof on the plaintiff.^ And so in Virginia, Michigan, and Illinois.^ § 409. In Missouri, the right conferred upon the defendant by statute, to contest the truth of the plaintiff's affidavit, b}'' a plea "in the nature of a plea in abatement," has given rise to a num- ber of adjudications. The language of the statute is as follows: "In all cases where property or effects shall be attached, the defendant may file a plea, in the nature of a plea in abatement, without oath, putting in issue the truth of the facts alleged in the affidavit, on which the attachment was sued out. Upon such issue, the plaintiff shall be held to prove the existence of the facts alleged by him, as the ground of the attachment ; and if the issue be found for him, the cause shall proceed ; but if it be found for the defendant, the suit shall be dismissed at the costs of the plain- tiff." ^ In order to see the force of some of the cases to be cited from the Reports of this State, it is necessary to mention here, that the affidavit for an attachment must state that the affiant " has good reason to believe, and does believe " the facts alleged as a ground for obtaining the attachment. The plea authorized by the statute, being therein designated as " in the nature " of a plea in abatement, was at one time held to be in fact such a plea, and to be governed by the same principles, subject to the same rules, and liable to the same consequences as a plea in abate- ment ; ° and therefore not amendable after demurrer ; ^ but after- wards this position was abandoned, and the plea held to be not strictly within the rules of pleading at common law applicable to pleas in abatement, and that it might be amended. Therefore, where the affidavit alleged that " the defendant has absented him- self from his usual place of abode in the State of ^Missouri, so that the ordinary process of law cannot be served upon him," and the defendant filed a plea saying that " at the time stated in the affi- 1 Ellison V. Tallon, 2 Nebraska, 14. * Eevised Statutes of Missouri of 1845, 2 Coston V. Paige, 9 Ohio State, 397. pp. 1-39, 140. 3 Wright r. Rambo, 21 Grattan, 158; ^ Livengood t\ Shaw, 10 Missouri, 273 ; Sublett V. Wood, 76 Virginia, 318 ; Hatry v. Shuman, 13 Ibid. 547. Brown v. Blanchard, 39 Michigan, 790 ; ^ Livengood i;. Shaw, 10 Missouri, 273. Towle V. Lampliere, 8 Bradwell, 399. \ 23 [353] § 409 ATTACHMENTS IMPEOVIDENTLY ISSUED, [CHAP. XV. davit, he bad not absented himself from his usual place of abode in this State, so that the ordinary process of law could be served upon him ; " and the plaintiff demurred to the plea ; and the de- fendant asked leave to amend by inserting the word " not " after the word " could ; " it was held, that he was entitled to make the amendment.! If, after filing such a plea, the defendant plead to the merits of the action, it is a waiver of the plea in abatement.^ Where time has elapsed between the date of the affidavit and the issue of the writ, this plea puts in issue the truth of the facts alleged at the time the writ was obtained.^ This mode of contest- ing the truth of the facts sworn to, being provided by the statute, their truth cannot be investigated on a motion.^ And after the filing of a plea in abatement, it is not competent for the plaintiff to dissolve his attachment, and carry on his action as if it had been commenced by summons ; for the statute gives the defend- ant the right to try the truth of the affidavit, and if the issue be found for him, to have the suit dismissed.^ This plea does not put in issue the belief of the person making the affidavit, nor the goodness of the reasons for his belief, but the truth of the facts charged.^ Nor can the intentions of the defendant be inquired into under it, except in those cases in which the statute contem- plates such an investigation. Therefore, where the affidavit averred that the defendant had absconded or absented herself from her usual place of abode, so that the ordinary process of law could not be served upon her ; and it was shown on the trial that her conduct had been of a character which might well induce the belief that she had absconded at the time the writ issued ; it was held, that the court did right in refusing so to instruct the jury as to place before them the question as to the intentions of the defendant, and in instructing them that the only matter for their determination was, whether, at the time of the making of the affidavit, the defendant actually had absconded or absented her- self, as charged.7 . Under this plea the defendant cannot take advantage of a misnomer. Elisha Swan and Nelson Deming were sued, and traversed the allegation that they were non-residents, 1 Cayce v. Ragsdale, 17 Missouri, 32. 5 Mense v. Osbern, 5 Missouri, 544. 2 Ilatry v. Sliuman, 13 Missovu-i, 547 ; "= Chenault ?-. Chapron, 5 Missouri, 438; Cannon v. McManus, 17 Ibid. 345. Didcr r. Courtney, 7 Ibid. 500. See Os- 3 Graliani v. Bradbury, 7 IMissouri, 281. born v. Schiff(.>r, 37 Texas, 434. * Grabani ;-. Bradbury, 7 Missouri, 281; '' Temple v. Cochran, 18 Missouri, 116. Searcy v. Platte County, 10 Ibid. 200. [C54] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. § 410 and attempted to give in evidence that Deming's name was not " Nelson," but " Anson L. ; " but it was held to be inadmissible.^ Upon a trial of an issue under such a plea, it was held, that evi- dence that the defendant was largely indebted to others besides the plaintiff was immaterial.^ Where three grounds of attach- ment were alleged, and the defendant pleaded in abatement to two of them only, it was held, that the omission to plead to the third ground was not an admission of its truth.^ § 410. Where two several grounds are stated in the afBdavit for the attachment, and a plea in abatement is filed to the affi- davit, it is not necessary that both grounds should be proved, but the proving of either will be sufficient to sustain the attach- ment.* 1 Swan V. O'Fallon, 7 Missouri, 231. ^ Kritzer v. Smitli, 21 Missouri, 296. 2 Switzer v. Carson, 9 Missouri, 740. * Tucker v. Frederick, 28 Missouri, 574. [355] § 414 DISSOLUTION OP AN ATTACHMENT. [CHAP. XVI. CHAPTER XVI. DISSOLUTION OF AN ATTACHMENT. § 411. The dissolutiou of an attachment discharges from its lien the property attached, whether levied on, or subjected in the hands of garnishees ; and it has been held, that a legislative act which should undertake to restore an attachment already dis- solved, would be unconstitutional and void as against a purchaser of the property after the dissolution.^ A dissolution may be produced by various causes, which will now be considered. § 412. The existence and operation of an attachment can con- tinue no longer than the statute authorizing it. If, during the progress of a suit by attachment, the law be repealed, without authorizing the continued prosecution of pending suits, there can be no further proceeding, and the attachment is thereby dis- solved.2 § 413. Obviously, a final judgment for the defendant dissolves an attachment.^ § 414. Defects in the plaintiff's proceedings may be equally fatal, unless remediable by amendment. They are usually found in the affidavit or the bond ; and the ordinary way to take ad- vantao-e of them is by a motion to dissolve, set aside, or quash the attachment.^ Every attempt to overturn an attachment in this way must precede plea to the merits ; for by such plea the defendant is considered to waive all exceptions to such defects j^ 1 Eidlnn V. Cressey, 65 Maine, 128. ^ Qarmon v. Barringor, 2 Devereux & 2 Stephenson v. Doe, 8 Hlacldbrd, 508. Battle, 502; Stoney v. JMcNiall, Harper, 8 Clapp V. Bell, 4 Mass. 99 ; Johnson 15G ; Younp v. Grey, Ibid. 08 ; Watson V. Edson, 2 Aikens, 299; Suydani v. v. IMeAllister, 7 ISIartin, 8t58; Enders v. Huggefor'd, 23 rick. 465; Brown v. Har- Steamer Henry Clay, 8 Kobins^on (La.), ris, 2 G. Greene, 605; Harrow v. Lyon, 30; Symons v. Northern, 4 Jones, 241; o j'jjj,] J57 Judali V. Duncan, 2 Bailey, 454; Gill v. " 4 Jordan v. Hazard, 10 Alabama, 221 ; Downs. 20 Alabama, 670 ; Mempliis R. R. Brown v. Coats, 56 Ibid. 439. Co. v. Wilcox, 48 Tenn. State, 161. [356] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 415 and the court can make no order quashing the attachment, which can interfere with the trial of the issues made by the pleadings.^ When the defendant appears and moves to dissolve the attach- ment, it is held, in Missouri, to be such an appearance to the action as will authorize a judgment by default against hun, if he fails to plead to the merits, whether he was served with process or not; 2 but not so in Louisiana or Illinois, if he was not so served.^ In the last-named State, an appearance by a defendant not served with process, to move to set aside a judgment by de- fault against hira, is held not to be a general appearance, author- izing a personal judgment against him;* and in New Mexico, that a motion by a defendant to quash an attachment for irregu- larity is not a general appearance.^ § 415. Every motion to dissolve, set aside, or quash an attach- ment is based on defects apparent on the face of the proceedings, and nothing will be considered on the hearing of such a motion, but what is thus apparent.^ The motion must specify the grounds upon which it is made. It is not sufficient to say that it is made "because the writ was improperly issued;" there must be a statement of the points of objection upon which the moving party will rely.' If there is any intrinsic defect in the proceed- ings, not discernible on their face, it cannot be brought before the court on a motion of this description, but must be reached in some other mode. For example, an attachment bond is exe- cuted in the name of the plaintiff, by an attorney in fact. The attorney may have had sufficient authority, or he may not ; but whether or not, the court will not inquire into that fact on a motion to dissolve. The scrutiny will not extend beyond the record ; and if there is a bond there, though it may in fact have been executed without any valid authority, it is sufficient, pro hac vice, to sustain the attachment.^ So where an attachment is 1 Carr v. Coopwood, 24 Mississippi, 256. shall, 516 ; Hill v. Bond, 22 Howard Pract. 2 Whitins v. Biuld, 5 Missouri, 443; 272; Cooper v. Reeves, 13 Indiana, 53; Evans v. King, 7 Ibid. 411. Wright v. Smith, 19 Texas, 297 ; Hill v. 3 Bonner r. Brown, 10 Louisiana, 334 ; Cunningham, 25 Ibid. 25. Johnson v. Buell, 26 Illinois, 06. ' Freeborn v. Glazer, 10 California, 337. 4 Klemm v. Dewes, 28 Illinois, 317; » Lindner v. Aaron, 5 Howard (Mi.), Jones V. Byrd, 74 Ibid. 115. 581 ; Spear v. King, Smedes & Mar- 5 Holzman v. Martinez, 2 New Mexico, shall, 276 ; Jackson v. Stanley, 2 Ala- 271. bama, 326; Lowry v. Stowe, 7 Porter, 6 Baldwin v. Conger, 9 Smedes & Mar- 483 ; Calhoun v. Cnzzens, 3 Alabama, [357] § 416 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. taken out by a corporation, the court will not, on such a motion, allow the defendant to show that the corporation had no power under its charter to execute the bond.^ In Penrisylvania, however, on a rule to show cause why an attachment should not be set aside, the defendant was allowed to show that the plaintiff had obtained judgment in another State on the same demand, and levied execution there ; and the attach- ment was quashed.^ But it was not regarded as any objection to an attachment, that the plaintiff had sued out an attachment in another State for the same cause of action, unless, perhaps, the defendant had there given bail.^ But the pendency of another suit by attachment in the same State, for the same cause of ac- tion, was, in Mississippi, held to be good in abatement.* § 416. A misrecital, in the writ, of the court to which it is re- turnable, is no ground for dissolving an attachment, where the nature and character of the writ show that it could be returnable only in a particular court ; ^ much less, where the writ is actually returned into the proper court.^ And where the practice was to recite in the writ the grounds of attachment set forth in the affi- davit; and an affidavit alleged that the defendant "so absconds or conceals himself that the ordinary process of law cannot be served on him ; " and the writ recited that oath had been made that the defendant " hath removed, or is about to remove him- self out of the county, or so absconds or conceals himself that the ordinary process of law cannot be served upon him ; " it was held, that the writ did not follow the terms of the affidavit, and left it uncertain as to the ground of the proceeding, and it was quashed.'' A contrary doctrine, however, was maintained in Mississippi, where it was held, that such a misrecital would not vitiate the attachment, if the record showed that the proper averment was made in the affidavit.^ 21 ; Goddard v. Cunningham, 6 Iowa, ^ gyrd v. Ilopkins, 8 Smedes & Mar- 400 ; City Nat. Bank v. Cupp, 69 Texas, shall, 441 ; Wharton i'. Conger, 9 Ibid. 268. 510. 1 Bank of Augusta v. Conrey, 28 Mis- '^ Blake v. Camp, 45 Georgia, 208. Bissippi, GG7. "^ Woodley v. Shirley, Minor, 14. 2 l")o\vning v. Phillips, 4 Ycates, 274. ^ Lovelady v. Ilarkins, G Smedes & 3 Fisher v. Consequa, 2 Washington, Marshnll, 412 ; Clanton r. Laird, 12 Ibid. C. C. 382 ; Clark v. Wilson, 3 Ibid. 500. 568; McClanahan v. Brack, 46 Missis- 4 James v. Dowell, 7 Smedes & Mar- sippi, 246. shall, 333. [358] CHAP. XVr.] DISSOLUTION OF AN ATTACHMENT. § 418 a § 417. The issue of an attachment on Sunday is at common law an irregularity, which, if appearing on the face of the writ, will justify the quashing of it. But if it do not so appear, the court, ivhere the act of the clerk is judicial, and not merely minis- terial, cannot order the clerk to alter the date of the writ, so as to make it show that it was issued on Sunday, and then quash it.^ § 418. It is not admissible for the defendant, in order to dis- solve an attachment on motion, to show that the debt was not due ; ^ or that the amount claimed by the plaintiff is unconscion- able or unreasonable;^ nor upon such a motion can the nature, validity, or justice of the cause of action sued on be inquired into.* This would be to tr}' in a summary and collateral way the main issue in the cause. Nor can he move to discharge the at- tachment on the ground that the property attached did not belong to him ; ^ nor because one of several counts in the declaration sets up an illegal and void cause of action while the other counts are legal ;^ nor because the cause of action is improperly or de- fectivelj' stated in the complaint.^ Nor is it admissible for the court, upon the trial, to dissolve the attachment because the plaintiff is found to be not entitled to recover an amount equal to that sworn to in the affidavit on which the attachment issued.^ But if, under a system of pleading where a complaint takes the place of a declaration, the complaint does not state a cause of action, and is incurable by amendment, the attachment may be dissolved on motion. If, however, the complaint can be made good by amendment, the plaintiff should be allowed to amend before the decision of. the motion to dissolve.^ § 418 a. In Alabama, the practice is to allow an amicus ciirice to move to quash an attachment for irregularities;^'' but I have not noticed the existence of such a practice in any other State. 1 Matthews v. Ansley, 31 Alabama, 20. 439 ; Mitchell v. Skinner, 17 Kansas, 2 Fisher r. Taylor, 2 Martin, 79, 113; 563. Smith r. Elliott, 3 Ibid. 36G; Reiss v. ^ Wilson r. Danforth, 47 Georgia, 676. Brady, 2 California, 132. " Cope v. U. M. M. & P. Co., 1 Mon- 3 Lord I'. Gaddis, 6 Iowa, 57. tana, 53. * Alexander v. Brown, 2 Disney, S95 ; 8 Brown v. Ainsworth, .32 Georgia, 487. Miller v. Chandler, 29 Louisiana Annual, ^ Hathaway r. Davis, 33 California, 161. 88. ^" Planters and Merchants' Bank v. An- 5 Langdon v. Conklin, 10 Ohio State, drews, 8 Porter, 404. [359] § 421 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. § 419. The question whether one not a party to the record, but who has an interest in the attached property, can make a motion to quash the attachment, arose in Ahibama, where it was held, that a mortgagee, whose lien was acquired after the levy of the attachment, could not make such motion for defects apparent in the record ; ^ and much less for matters dehors the record.'-^ But in Texas it was decided that the sureties in a delivery bond sus- tain such a relation to the action as to authorize them to move to quash the attachment.^ § 420. The entertainment of a motion to quash or dissolve an attachment for irregularities in ^he proceedings is within the dis- cretion of the court, and a refusal by the court to entertain it will not be controlled by mandamus,* or revised on error.^ Nor will the decision of the court overruling such a motion be so revised.^ But where the judgment of a court quashing an at- tachment has been had in this summary mode, its correctness may be examined on error ; "' but not unless the reasons for its action are spread upon the record, or preserved in a bill of ex- ceptions.^ Where, however, the objection to the attachment is not on the ground of irregularity, but because it was sued out upon a cause of action not contemplated by the statute, the court in which the action is pending should dismiss the suit ; ® and if it do not, the appellate court will review its action, and itself exercise the remedy.^^ § 421. The refusal of the court in which the attachment was brought, to dissolve it on motion, does not preclude its doing so at the final hearing.^^ 1 May V. Courtnay, 47 Alabama, 185. Ellison v. Mounts, 12 Ibid. 472 ; Gill v. 2 Cockrell v. McGraw, 33 Alabama, 526. Downs, 22 Ibid. 670 ; Miller v. Sprccher, 8 Bm-cb r. Watts, 37 Texas, 1:3.5. 2 Yeates, 1G2; Br.nwn v. Rid-^way, 10 4 Ex parte rutnam, 20 Alabama, 592. Penn. State, 42 ; Lindsley i-. Malonc, 23 6 Reynolds v. Bell, 3 Alabama, 57; Ibid. 24 ; Baldwin i-. Wrigbt, 3 Gill, 241 ; Massey i^. Walker, 8 Ibid. 107 ; Ellison v. Mitcbell v. Cliesnut, 31 Maryland, 521 ; Mounts, 12 Ibid. 472 ; Hudson v. Daily, First Nat. Bank v. Wecklcr, 51 Ibid. 30. 13 Ibid. 722 ; Gee v. Alabama L. I. & t. ^ Reynolds r. Bell, 3 Alabama, 57. Co., Ibid. 570; Gill v. Downs, 20 Ibid. 8 Cobb r. O'Neal, 1 Howard (Mi.J, 581 ; 670'; Watson v. Aucrbacb, 57 Ibid. 353; Freeborn v. Glazcr, 10 California, 337. Busbin v. Ware, 00 Ibid. 279; Ricli v. 9 Elliott v. Jackson, 3 Wisconsin, 649. Tbornton, Ibid. 473. ^» Griswold v. Sliarpe, 2 California, 17. 8 Massey v. Walker, 8 Alabama, 1G7 ; " Talbot v. Pierce, 14 B. Monroe, 195. [360] CHAP. XYI.J DISSOLUTION OF AN ATTACHMENT. § 422 § 422. In this connection may properly be considered the ef- fect of the death of the defendant upon an attachment. The decisions on this subject are few, and mostly so connected with local statutes as to have little general applicability. Of this de- scription are the reported cases in Maine and Massachusetts. In a case in the latter State, where the effect of the defendant's bankruptcy after the levy of an attachment was under consider- ation, Shaw, C. J., in delivering the opinion of the court, used the following language : "As a question of policy and expedi- ency, we are inclined to the opinion that when it becomes neces- sary to settle and close up the affairs of a debtor, whether at his decease or during his life, true equity would require that all his property, which has not become appropriated and vested by his own act or the operation of law, should be applied to the payment of all his debts, and that an attachment on mesne process, being a sequestration of his property, and placing it provisionally in the custody of the law, should give way to the more general sequestration of all his property for the satisfaction of all his debts. In that case the creditor will receive the whole amount of his debt, if there be assets, and his satisfaction pro rata, if there be a deficit ; and as between him and other creditors there seems no equitable ground on which he should have more. Such is the law in Massachusetts, in regard to the settlement of the estate of a deceased insolvent debtor, where the settlement and distribution of the estate must necessarily be final. Upon the appointment of an administrator, who takes the property as trustee for all the creditors, all attachments on mesne process are dissolved." ^ In Rhode Island it is held, on common-law principles, that the attachment is dissolved by the death of the defendant ; notwith- standing the statute of that State declaring that " the executor or administrator of such deceased party, in case the cause of ac- tion survives, shall have full power to prosecute or defend such action or suit from court to court until final judgment; and is hereby obliged to prosecute or defend the same accordingly." 2 1 Davenport v. Tilton, 10 Metcalf, 320. dered therein. The suit must have been 2 Vaughn v. Sturtevant, 7 Rhode Is- dismissed ; any attacliment made therein land, 372. Tiie court said : " By the dissolved and lost ; and the plaintiff put common law, the death of a sole defend- to a new action against the executor or ant at any time before final judgment administrator of the deceased, in which would have abated the suit altogether, the writ would authorize neitlier an arrest and no judgment could have been ren- nor an attachment of real estate. From [361] § 422 DISSOLUTION OF AX ATTACHMENT. [CHAP. XVI. In Pennsylvania, where a foreign attachment, as under the custom of London, is a process to compel the appearance of a non-resident debtor, by distress and sale of the property attached, it is held, that tlie death of the defendant before final judgment dissolves the attachment, if he shall not have entered special bail. But his death after final judgment does not have that effect. In the case in which these points were decided, the court say : i' If these proceedings were in all respects in rem^ they would not abate by the death of the defendant. For some purposes they are to be so considered ; for execution can only be against the goods attached, but not against the person of the defendant ; but to every purpose the}^ are not ; for by entering special bail, the attachment is dissolved, and it then becomes a mere personal ac- tion." ^ The United States Circuit Court for the District of Columbia held the same position.^ In Louisiana, it was decided that an attaching creditor acquires no privilege upon the property of a debtor in that State, who dies during the pendenc}' of the suit, and whose estate is admin- istered upon there, so as to entitle him to priority of payment out of the assets of the estate.^ In Tennessee the rule is, that if the defendant die pendente lite, no judgment can be rendered without making his adminis- trator a party; and after judgment against the administrator, no order for the sale of real estate attached can be made, without making the heirs parties to the proceeding ; ^ but where these steps were taken, the court ordered a sale of the land; which none of these consequences is the surviv- save notliing of the incidents of an abate- ing party saved except by the provisions nieiit of the original suit, except that the of Ch. IGl of the Revised Statutes [of action is allowed to proceed with the 1857] referred to ; and these do not de- new parties, and in tlie manner pre- clare that the action shall not abate, or scribed. It is equally clear, that the lien that it shall survive with all the inci- now claimed by the plaintiff is not saved dents it originally had ; but that instead by those provisions, either expressly or of being dismissed, it may be made to impliedly, and tliat no execution can answer the purposes of the new suit issue against the real estate of the orig- which a dismissal of the action would inal defendant whicli had been attached." render necessary. This is to be done by The court reasserted these views in Up- compelling the new parties necessary to liam r. Dodge, 11 Rhode Island, G21. such new suit to become parties to this, ^ Fitch r. Ross, 4 Sergeant & Rawle, and allowing the action then to proceed 557. as if tlic suit had originally been between ^ Pancost r. Washington, 5 Cranch, them, and the deceased had never been C. C. 507. a party." The court then noticed, in de- ^ Collins i'. Duffy, 7 Louisiana Annual, tail, the statutory provisions, and said : 39. " It is quite dear, that these provisions * Green v. Shaver, 3 Humphreys, 139. [362] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 422 was, in effect, to hold that the attachment was not dissolved by the death of the defendant.^ In Missouri,^ and California,^ the death of the defendant before judgment dissolves the attachment; and in the former State, if the death take place after the rendition of a judgment without personal service, and therefore binding only the property at- tached, the same result will follow.* In South Carolina it was held, that a foreign attachment abates by the death of the defendant pending the suit ; but when the garnishee has made default, judgment may be had against him after the defendant's death. ^ In New York it was held, that the plaintiff acquired by the at- tachment a right in the property attached, which could not be defeated by the death of the defendant, if the action survived, and the court had power to continue it against the representa- tive.^ And so in West Virginia,'^ and lowa.^ In Mississippi, the statute provides that " if the defendant shall die, after the service of the writ of attachment, the action shall not thereby be abated or discontinued, but shall be carried on to judgment, sale, transfer, and final determination, as if the defendant were still alive, and such death had not occurred." And it was there held, that the death of the defendant puts an end to the power of the court to render a personal judgment against him ; but that a judgment may be rendered against him as a necessary means to charge a garnishee ; that it can reach only what was attached in the garnishee's hands ; and when that is accomplished, the judgment has no further virtue.^ And where no service of summons on the defendant was had before his death, and his administrator, nevertheless, appeared to the action and pleaded to the merits ; and trial being had on the pleas, and ver- dict and judgment rendered for the plaintiff, judgment was also given against garnishees who had been summoned before the defendant's death. ^'^ 1 Perkins r. Norvell, 6 Humphreys, 151. « Moore v. Thayer, 10 Barbour, 258; 2 Sweringen v. Eberius, 7 Missouri, 6 Howard Pract. 47 ; 3 Code Reporter, 421. See Loubat v. Kipp, 9 Florida, 60. 176 ; Thacher v. Bancroft, 15 Abbott 3 Myers v. Mott, 29 California, 359 ; Pract. 243. Hensley v. Morgan, 47 Ibid. 622. ' White v. Heavner, 7 West Virginia, * Harrison v. Renfro, 13 Missouri, 446. 324. 5 Kennedy v. Raguet, 1 Bay, 484; « Lord y. Allen, 84 Iowa, 281. Crocker v. Radcliffe, 1 Constitutional ^ Holman v. Fislier, 49 Mississippi, 472 Court (Treadway), 83. i° Dyson v. Baker, 54 Mississippi, 24. [363] § 425 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. § 423. Whatever diversity of views may exist, as to the effect upon a pending attachment of the death of the defendant, there can be no doubt that a suit by attachment, commenced after the death of the defendant, is utterly void, and therefore that no attachment of property, or proceeding by garnishment, in such suit, can have any validity whatever.^ § 424. The same views which would abate or dissolve an attachment upon the death of a person, would produce a like re- sult in the case of the civil death of a corporation ; and it has been so decided in Maine, Pennsylvania, and Alabama.^ § 425. In this connection, too, may properly be considered the effect upon an attachment of an act of bankruptcy committed by the defendant after the levy of the writ. Does that act dissolve an attachment previously made ? This question has excited elaborate discussion by some of the first jurists of the country. It will at once be seen to turn altogether on the point whether an attachment is alien^ in such sense as to be within that clause of the Bankrupt Law which protects existing liens against the operation of the law. If a lien, the attachment cannot be dis- solved by an act of bankruptcy on the part of the defendant. The late Justice Story, on more than one occasion, during the existence of the General Bankrupt Act of 1841, decided that an attachment under mesne process was not a lien, either in the sense of the common law, or of the maritime law, or of equity ; but only a contingent and conditional charge, until the judgment and levy ; and therefore was dissolved by the defendant's bank- ruptcy. In this judgment, that learned jurist stood opposed by every other tribunal in tlie United States before which the ques- tion was made, except the Supreme Court of Louisiana.* The great weight attached to his views on any question led, after the promulgation of those decisions, to several very able opinions in favor of the opposite conclusion. Indeed, in every instance 1 Lorinp r. Folper, 7 Gray, 505. tlie garnisliment of its debtor, did not pre- 2 Bowker v. Hill, (50 Maine, 172 ; vent tlie subjection of the garnishee to Farmers and Meclianics' Bank v. Little, liabilitj'. 8 Watts & Serireant, 207 ; Pascliall r. 3 Foster's Case, 2 Story, 131 ; Bellows Wbitsett, 11 Alabama, 472. In Lindell and Peck's Case, 3 Story, 428. V. Benton, Missouri, 3(Jl, it was held, * Fisher u. Vose, 3 Kobinson (La.), 457. that the civil death of a corporation, after [3G4] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 426 where the subject was passed upon, with the single exception just named, the lien of the attachment was sustained. The Dis- trict Court of the United States for Vermont, ^ the late Justice Thompson, of . the Supreme Court of the United States,^ and the Supreme Courts of IMaine,^ New Hampshire,'^ Massachusetts,^ New Jersey,^ Mississippi,^ and Illinois ^ all concurred in that result. The Supreme Court of Connecticut, in a case arising under the Bankrupt Act of 1800, also held views opposed to those of Jus- tice Story.^ When to these adverse opinions we add the numer- ous decisions of different courts previously cited,^*^ affirming the lien of an attachment, we are justified in considering it settled by the weight of authority, that an attachment is not dissolved by the defendant's bankruptcy.^^ § 426, When an attachment has been dissolved, by reason of a judgment in favor of the defendant, or otherwise, the special property of the officer in the attached effects is at an end, and he is bound to restore them to the defendant, if he is still the owner of them, or if not, to the owner ; and this without being reimbursed any money he may have paid, in extinguishment of a lien, in order to obtain the property under the writ, or as ex- penses connected with its safe keeping.^^ jf \-^q f.^^ ^q i^xake such return, he is liable for the property. His informing the de- fendant that he has relinquished the attachment, while he keeps the property locked up in the house in which it was attached, is no return of the property.i^ And he cannot screen himself from this liability, by delivering the property to the plaintiff. It is not his duty — indeed it would be contrary to his duty — to make such a delivery to the creditor, even after his demand is 1 Downer v. Brackett, 5 Law Reporter, ^ pjin j, Harding, 9o Illinois, 77. 392; 21 Vermont, 599; Rowell's Case, 9 Ingrahani v. Phillips, 1 Day, 117. Law Reporter, 300 ; 21 Vermont, 620. -O Ante, § 224. 2 Haugliton v. Eustis, 5 Law Reporter, ^ This section does not refer to the 50.5. General Bankrupt Act of March 2, 18G7 ; " Franklin Bank v. Batchelder, 23 under Avhich the assignment of tlie bank- Maine, 00. rupt's effects operates as a dissolution * Kittredge v. Warren, 14 New Hamp. of any attachment of his property made 509 ; Kittredge i'. Emerson, 15 Ibid. 227 ; within four months next preceding the Butiuni v. Seaver, IG Ibid. 160. See Peck commencement of the proceedings in V. Jenness, 7 Howard Sup. Ct. G12. bankruptcy. 5 Davenport v. Tilton, 10 Metcalf, 320. i^ Pelker v. Emerson, 17 Vermont, 101 ; 6 Vreeland i-. Brown, 1 Zabriskie, 214. McReady v. Rogers, 1 Nebraska, 124. 7 Wells V. Brander, 10 Smedes & Mar- 13 Becker v. Bailies, 44 Conn. 167. shall, 348. [365] § 427 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. ascertained and sanctioned by a judgment. Goods attached are in the legal custody of the officer, and he is accountable for them, no less to the defendant than to the plaintiff in the attachment ; and the general property in the goods is not changed, until a levy and sale under execution.^ But in order to entitle the de- fendant to a return of the property, the attachment must, in fact, have been dissolved. It is not enough that the defendant has settled with the plaintiff the matter in controversy, and is en- titled, as against the plaintiff, to a return of the property. .The fact of such settlement must be brought home to the officer, by actual notice, or by a discontinuance of the suit, before the de- fendant can maintain an action against him for the property .^ The same obligation to return the attached j^i'operty to the owner rests upon the officer, where the plaintiff has instructed him to release the levy of the writ ; ^ and likewise where the attachment is discharged by a payment of the debt ; but in the latter case the officer cannot be charged as a wrong-doer for hold- ing the property until satisfactory evidence be given him that the attachment has been vacated.* Prima facie, in such cases, the officer must assume the defendant to be the owner; but if he have notice of a sale of the property by the defendant, he must not deliver it to the defendant, but to the vendee.^ And when- ever the obligation rests upon the officer to return the property, either to the defendant or to a vendee, the sureties in the officer's official bond are liable for his failure to make such return.*^ § 427. The liability of the officer to the defendant, for the at- tached property, does not necessarily accrue in all cases imme- diately upon the dissolution of the attachment ; but must depend, as to the time when it accrues, upon the particular circumstances of the case. Thus, where property was delivered by the officer to a receiptor, approved by the defendant, and the receiptor failed to deliver it when required, it was held, tliat the defendant could not maintain an action against the officer therefor, until the lapse of a reasonable time to enable the latter to recover it from the receiptor.'^ 1 Blake i-. Sliaw, 7 Mass. 505. See ^ State v. Fitzpatrick, G4 Missouri, 185. Snead v. Wcgman, 27 Missouri, 170. ^ Levy r. McDowell, 45 Texas, 220; 2 Livingston v. Smith, 5 I'eters, 90. State i-. Fitzpatrick, G4 Missouri, 185. 3 Levy V. McDowell, 45 Texas, 220. '' Bissell v. Huntington, 2 New Hamp. < Wliccler 1-. Nichols, Z2 r^Iaine, 233. 142. [3G6] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 428 § 428. The right of the defendant to demand a return of at- tached property upon the dissolution of an attachment, is sus- pended by an appeal or writ of error, with notice thereof to the officer. But if before writ of error or appeal the defendant de- mauds it, and the officer gives it up, it was held in Alabama, that the latter cannot afterwards, on reversal of the judgment, be held responsible for it.^ This was ruled in a case where the judgment dissolving the attachment was rendered "at the spring term " of the court, and the writ of error was not sued out until the following November, and in the intervening June the sheriff returned the proceeds of the attached property to the defendant. But where the attachment plaintiff acts promptly in taking the case to a higher court, by appeal or writ of error, operating as a supersedeas^ it were a great injustice to him to hold that the officer who attached the property may give it back to the defend- ant, and escape all liability for it to the plaintiff, when the judg- ment dissolving the attachment is reversed, and the plaintiff's right to hold the projDcrty has been established. In such case, there would hardly seem room for doubt that the contrary view taken by the Supreme Court of Iowa is correct. There the at- tachment plaintiff, at the same term of the court at which his attachment was dissolved, and within four days after the dissolu- tion, appealed from the judgment, and gave a supersedeas bond ; but in the interval the officer, ivithout any order of the courts gave back the attached property to the defendant. On the appeal the judgment dissolving the attachment was reversed ; and the Supreme Court held, that the plaintiff had not lost his right to recourse upon the attached effects.^ But in another branch of the same case, that court subsequently held, that this decision had no reference to a case where the rights of third persons were involved. And so, where a sum of money was in the hands of the clerk of the court, as proceeds of the sale of part of the at- tached property, and between the time when the attachment was dissolved, and that of taking the appeal, the clerk, without know- ing that the appeal would be taken, paid over the money to the defendant ; it was held, that he could not be made liable, if he paid it in good faith; that if the plaintiff wished the money to remain in statu quo he should have notified the clerk of his in- tention to appeal ; and that if the clerk had paid it over after 1 Sherrod v. Davis, 17 Alabama, 312. 2 Danforth v. Carter. 4 Iowa, 230. [307] § 430 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. such notice lie would have been liable.^ But in every such case it is undoubtedly the safest course for the officer to require an order of the court for the payment of the money to the defendant. In Arkansas, a plaintiff appealed from a judgment in favor of the defendant, on demurrer, but failed to file in due time in the appellate court a transcript of the record, and the appeal was for that reason dismissed. One month and four days after the dis- missal of the appeal, the plaintiff sued out a writ of error. No supersedeas bond was given, either, on the appeal or the writ of error. Under that writ the appellate court reversed the judgment of the inferior court, and ordered the latter to sustain the de- murrer, which was done. The case was then tried on the merits, and the issues were found for the plaintiff ; whereupon the court rendered a judgment in personam against the defendant, and then proceeded to order, that, as no bond was given on the appeal or on the writ of error, the attachment lien was lost by the judgment in favor of the defendant, which had been reversed. The Su- preme Court held, that the lien of the attachment was not lost, and annulled and set aside this order.^ § 429. Where two attachments were executed on the same effects, and the first executed was quashed, and the judgment quashing it was reversed, but in the mean time the property was sold and the proceeds paid to the plaintiff in the second attach- ment ; it was decided that the first attaching creditor was entitled to recover from the second the money paid over to him.^ But where over three years elapsed before the writ of error was prosecuted, it was held, that the attachment was not revived as against third persons.^ And if the first attacher dismiss his suit, but afterwards, with the consent of the defendant, obtain leave of court to reinstate it on the docket, such reinstatement cannot have the effect of restoring his priority, as against a subsequent attacher.^ § 430. Where property is attached and sold, and the proceeds paid to the plaintiff, a reversal of the judgment by an appellate court, on grounds not affecting the merits of the plaintiff's claim, 1 Panforth .. T^uport, U Iowa, 547. * Harrow .. Lyon, 3 a Greene, 157. 2 Harrison v. Tra.lor, 2<.) Arkansas, 85. » Murphy v. Crew, 38 Georgia, 163. 3 Caperton >'. McCorkle, 5 Grattau, 177. [36S] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 431 will not entitle the defendant to recover the proceeds back from the plaintiff, where it appears that he prosecuted his suit in good faith, believing himself legally entitled to do it. If prosecuted, however, for the purpose of obtaining an nndue advantage, by- getting hold of the proceeds of the sale of the property, he would not be permitted to avail himself of an advantage thus improp- erly obtained.^ § 431. Where, as in several States, the sale of attached prop- erty on mesne process is authorized, if an officer make such sale of part of the attached effects, and realize therefrofti a sufficiency to pay the debt on which the attachment was obtained, it is hlld, in Vermont, that that will not dissolve the attachment as to the remainder, or impair the creditor's lien on it, whatever may be the officer's liability for attaching more property than was needed to satisfy the debt.^ 1 Jackson v. Holloway, 14 B. Monroe, 133. 2 Marshall v. Town, 28 Vermont, 14. Note. — A large part of this Chapter, as arranged in some previous editions, has been transferred to Chapter XII. ; which accounts for the hiatus in the section numbers at this point. In Chapters XL and XII., the matter of dissolution of attachment by other means than those set forth in this Chapter is discussed. 24 [369] 437 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. CHAPTER XVII. NOTICE TO ABSENT DEFENDANTS BY PUBLICATION. § 436. The mere issue of a writ of attachment, and levying it on the property of the defendant, without service of process on hiA, without notice to him in any way, and without appearance on his part, is not a sufficient foundation for a judgment in the attachment suit against hira.^ And as in many cases the absence of the defendant would preclude the possibility of service of process on him, provision' is usually made iu attachment laws for notice by publication to absent defendants, of the institution and pendency of attachment suits against them, in order that they may, if they see proper, appear and defend. This is one of the guards provided for the protection of defendants, and the requirements of statutes in this respect should be strictly enforced. § 437. This notice is not necessary to give the court jurisdic- tion of the action. Its object is simply to inform the defendant, if possible, that proceedings have been taken against him. Whether a court has jurisdiction of any particular proceeding is determined by establishing its authority to take tlie first step therein. When, therefore, in an attachment cause, the ground required by statute has been laid for the issue and execution of the process, and the process has been issued and executed, the jurisdiction of the court has attached. If this ground be not laid, there is no right to take the first step, and that and all sub- sequent ones are simply void. When, however, jurisdiction has been attained, the subsequent proceedings must conform to the law, in order to make the action of the court effectual. Want of such conformity will be error, and, therefore, a good ground for reversing the judgment of the court ; but will not make the 1 Edwards v. Toomer, 14 Smcdes & sissippi, 648 ; Martin v. Dryden, G Illinois Marshall, 75; Ridley v. Ridley, 24 Mis- (1 Gilman), 187. [370] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 437 a proceedings void. When, therefore, notice to the defendant by pubHcation is required, it is not an element of the jurisdiction of the court, but is necessary to authorize the court to exercise its jurisdiction by giving judgment in the cause ; ^ and when the defendant is thus notified, he is before the court for all purposes except the rendition of a personal judgment against him ; ^ and the judgment obtained against him is so far conclusive, that the rights of purchasers of property under it will be protected.^ § 437 a. The fact of publication according to statutory require- ment, must appear in the record, or the judgment may be reversed.^ It may appear either by the court's entering of record a finding of the fact, or by setting out in the record the evidence of publication; 5 the former mode being much preferable. And where the record shows the fact of publication to have been duly made, the filing of an affidavit in the appellate court, stating that in the first insertion of the notice in the newspaper there was a typographical error in the defendant's name, will not be sufficient to overcome the proof in the record.^ Where the statute does not require the proof of publication to be made in any particular mode, the court will receive such evidence as may be satisfactory to it ; and then it is important that it should enter of record that the publication has been proved. If proof in a particular mode be required by statute, the fact of its having been made in that mode ma}^ either appear by inserting the evidence in the record or by a record finding that the publication has been made. If the statute does not require a particular mode of proof, but author- izes the fact of publication to be established by the certificate of a printer or publisher ; and it is sought to prove it in that way, and to show by the insertion of the certificate in the record that the publication has been made, it will be insufficient if the certifi- cate do not follow, the statutory authority. Thus, where the law authorizes publication to be shown by the certificate of the printer 1 Paine v. Mooreland, 15 Ohio, 435 ; ^ buss v. Heasty, Gl Illinois, 338. Williams v. Stewart, 3 Wisconsin, 778; * Foyles v. Kelso, 1 Blackfonl, 215; Beech v. Abbott, 6 Vermont, 586 : Mas- Haywood r. McCrory, 33 Illinois, 450 ; sey V. Scott, 49 Missouri, 278 ; Feild v. Haywood v. Collins, GO Ibid. 328 ; Thor- Dortch, 34 Arkansas, 399 ; Newman v. meyer v. Sisson, 83 Ibid. 188 ; Newman Manning, 89 Indiana, 422. Sed contra, v. Manning, 89 Indiana, 422. Calhoun v. Ware, 34 Mississippi, 146. ^ Haywood v. Collins, 60 Illinois, 328. 2 King V. Vance, 4G Indiana, 246. ^ Lawver v. Langhans, 85 Illinois, 138. [371] § 440 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. or publisher, with a written or printed copy of the notice annexed, a certificate inserted in the record, which does not show that the party making it was printer or publisher, will not suffice. ^ And where the law requires the certificate to state the dates of the first and last papers containing the advertisement, the omission to state the date of the last paper vitiates the proof.^ And where the court makes a record finding of the fact of publication, it is not enough to find '' that publication was made giving the defen- dant notice according to law ; " but the record must show that the publication was made the number of times required by the statute.^ When the court makes such a finding, showing the due publication of the notice, in the manner and for the number of times required by law, the correctness of the finding cannot be collaterally questioned.* § 438. This subject presents itself in a twofold aspect : 1. As to the sufficiency of the notice, as the foundation for further pro- ceedings in the cause ; and, 2. As to the effect of failing to pub- lish notice, or of publishing an insufficient one, upon the validity of the subsequent proceedings in the suit, when afterwards called in question inter alios. § 439. Under the first head, the sufficiency of the notice to authorize judgment against the defendant' depends upon its con- formity to the statute in its terms and its publication. As to the terms, there should be a substantial, if not a strict compliance with the law. Therefore, where the advertisement was required to " state the names of the parties, the day, month, and year, when, and from what court, and for what sum, the writ issued," and it omitted to state the day, month, and year when the writ issued, it was held to be insufficient.^ § 440. Tn JNIissouri, where the statute required " the court to order a publication to be made, stating the nature and amount of the ])lain tiffs demand," etc., it was held that stating jn the notice " that an action of assumpsit for the sum of $403.70 had been commenced against him," was a sufficient statement of the 1 Haywood v. McCrory, 33 Illinois, * Freeman v. Thompson, 53 Missouri, 450 ; Haywood v. Collins, 60 Ibid. 328. 183. 2 Haywood v. McCrory, 33 Illinois, 450. & Ford v. Wilson, Tappan, 235. 3 Dow 1". Wliituiau, oli Alabama, 004. [372] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 441 a nature of the plaintiff's demand.^ Under the same statute, it was decided that a notice stating that the proceedings were " founded on two promissory notes for the sum of 8-386.94," was uncertain upon the material point of the amount actually claimed; and the judgment was for that cause set aside.^ In the same State, it was ruled, under a statute requiring the defendant to be notified "that his property had been attached," that a notice omitting that clause was bad ; ^ but afterwards a judgment rendered on such a notice was sustained.'* Under the same statute, a notice stating that his " property was about to be attached," was considered sufficient.^ § 441. In Michigan, the statute requires the clerk, upon the return of the writ, to make out an advertisement, stating the names of the parties, the time when, from what court, and for what sum, the writ was issued. A notice containing all the statute required, was made out and published, bearing date November 23, 1843, and stating that the writ was issued on the 12th of June, 1843, and was " returnable to the second Tuesday after the first Monday in November next^'' instead of instant. It was regarded as a mere clerical mistake, which would not mis- lead, and did not vitiate the proceeding.^ So, where the publica- tion was erroneous in the name of the plaintiff, because of the insertion of a wrong initial of his middle name ; it was considered not to invalidate the proceedings, but that the judgment was effective and conclusive between the parties, until reversed. And in the same case it was held, that the publication was not vitiated by reason of its stating that the term of court at which the de- fendant was required to appear was in August, 1887, instead of 1867; for the law fixing the time of holding the court was sufficient notice of the dateJ § 441 a. If, at the time of the institution of a suit by attach- ment, the law require an order of publication to be made by the court, a subsequent statute requiring it to be made by the sheriff, but having in it no words indicating an intention in the 1 Sloan V. Forse, 11 Missouri, 126. See * Moore v. Stanle.y, 51 Missouri, .317. Freeman v. Thompson, 53 Ibid. 183. ^ Harris v. Grodner, 42 Missouri, 159. - Haywood v. Russell, 41 Missouri, 2-52. ^ Drew v. Deqiiindre, 2 Douglass, 93. 3 Durrossett's Adm'r v. Hale, 38 Mis- ' " Morgan v. Woods, 33 Indiana, 23. souri, 316. [373] § 444 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. legislature to give it a retroactive effect, will not invalidate an order made by the court.^ § 442. In regard to the time of publication, where publication was required to be made for two months, it was held not sufficient to publish it for eight weeks.^ § 443. Under a statute requiring notice to be published for four weeks successively^ an affidavit was made stating that it had been so published, once every week, commencing on the 24th of April, and ending on the 5th of May ; and it was held, that the statement that it had been published four weeks successively was sufficient, and the additional statement assigning the dates of the commencement and conclusion of the publication, was surplus- age, and did not vitiate the previous general statement.^ § 443 a. Under a statute prescribing a publication for four weeks successively, " the last insertion to be at least four weeks before the commencement of the term," it was ruled, that this did not require the publication to commence eight weeks before the term, nor that the four weeks should end before the term ; but it was sufficient if the last insertion was four weeks before the term.* § 444. "Where the law provided that the defendant should be notified of the pendency of the attachment, by publication of a notice in a newspaper for four weeks successively ; and, in case sixty days should not intervene between the first insertion of the notice and the first term of the court, the cause should be con- tinued ; it was held, that the proper rule' for the computation of time in such case, was to exclude the day on which the notice was first inserted, and include the day on which the term com- menced ; and that a notice first inserted on the 27th of Ma}'-, was not good for a term of court beginning on the 25th of July.^ 1 Parsons r. Paine, 26 Arkansas, 124. ^ Swayze v. Doc, 13 Smcdes & Mar- 2 Pyle V. Cravens, 4 Littell, 17; Law- shall, 317. lin V. Clay, Ibid. 283 ; Iluat v. Wickliffe, •» Haywood v. Russell, 44 Missouri, 252. 2 Peters, 201. ^ Vairin v. Edmonson, 10 Illinois (5 Gil- man), 270; Forsyth v. Warren, 62 Ibid. 68. [374] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 446 a § 445. Where the law declared that no judgment should be entered on tlie attachment until the expiration of twelve months ; during which time the plaintiff should cause notice of the attach- ment to be advertised three Aveehs successively in a public news- paper ; publication at any time within the twelve months was considered suflBcient.^ And where the statute does not fix any time within which the publication shall be commenced, a delay of publication for two years and a half was not regarded as a sufficient ground for setting aside the attachment proceedings.^ § 446. A common occurrence is for legislatures to change the times of holding courts. Where by any such law the term of a court is fixed for a time anterior to that at which it was formerly established, and the full time required b}^ law for publication of notice is thereby abridged, no proceedings in the attachment suit, depending for their validity upon the correct publication of the notice, can properly be taken. Therefore, where the law required publication for six months, and after publication was ordered, the legislature passed a law requiring the court to be held at an earlier day than before, which allowed only four months for publication, and judgment was taken at the end of four months, it was considered erroneous, and was reversed.^ In Missouri, however, where the time of holding the court was changed, so as to bring the term forward, and the law provided that " all writs, process, and proceedings made returnable to the courts of either of the above-named counties, shall be returnable to the courts held under this act ; " an order of publication issued after the act took effect, requiring the defendant to appear at the time when the court was to be held under the previous act, but which was published the required number of times before the time fixed by the new act for holding the court, was sustained in a collateral contest of the validity of the judgment in the attachment suit.* § 446 a. All defects in the notice or in its publication are waived by the defendant's appearance and traverse of the alle- gations of the afiidavit.^ But this waiver cannot so set up void 1 Harlow v. Becktle, 1 Blackford, 237. * Freeman v. Thompson, 53 Missouri, 2 Matter of Clark, 3 Denio, 167. 183. 3 Saffaracus v. Bennett, 6 Howard ^ Williams v. Stewart, 3 "Wisconsin, (Mi.), 277 ; Colweil v. Bank of Steu- 773. benville, 2 Ohio, 229, 2d Edition, 377. [375] § 448 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. proceedings as to make them valid ah initio as against rights acquired by third persons in the property attached, between the time of the levy of the attachment and that of the sale of the property under execution issued on judgment obtained in the at- tachment suit. Thus, where an attachment was levied on real estate, and the defendant was not served, and the case was pros- ecuted to judgment on publication of notice to him ; and after the sale of the land on execution, the defendant appeared and moved to set aside the judgment, not only because of the ille- galit}' of the publication, but because the judgment was rendered on insufficient evidence ; this was held to be an appearance to the merits and a submission to the jurisdiction, which, so far as the defendant was concerned, might cure the original defects ; but that it did not so validate the proceedings ah initio as to vitiate a conveyance of the land made by him during the pen- dency of the attachment suit.^ § 447. But a much more serious question than any that have been mentioned, arises when title is claimed under judgments in. attachment cases, where there has been insufficient publication, or none at all. Upon this point, it was decided in Indiana, in an action of ejectment for the recovery of land, purchased at sher- iff's sale in an attachment suit, that insufficiency of publication did not invalidate the proceedings so as to allow them to be im- peached collaterally .2 § 448. In Ohio, in a similar case, it was at one time held, that the fact of the notice required by statute not having been given, made the judgment and sale under it void, and that the pur- chaser at the sale acquired no title ; ^ but the Supreme Court of that State afterwards reversed itself on this point, and held, that the proceedings of the court are not so invalidated by the failure to make publication, as to make tlie sale under them void> And it is so ruled in Vermont,^ New York,*^ jNIissouri,' lowa,^ and Ne- 1 Anderson v. Coburn, 27 Wisconsin, ^ Matter of Clark, 3 Denio, 1G7. 558. ■' Hardin i\ Lee, 51 Missouri, 241 ; 2 Zeigenliagen v. Doe, 1 Indiana, 296. Freeman v. Tiionipson, 53 Ibid. 183 ; 3 Warner i'. Webster, 13 Oliio, 505. Holland i\ Adair, 55 Ibid. 40; Kane v. * Paine r.Mooreland, 15 Ohio, 435. See McCown, Ibid. 181; Johnson v. Gage, Feild y. Dortcli, 31 Arkansas, 399. 67 Ibid. 160. '" Beech v. Abbott, G Vermont, 580. * Gregg v. Thompson, 17 Iowa, 107. [376] CHAP. XYIT.] NOTICE TO DEFENDANTS BY PUBLICATION. § 448 a braska,^ and by the Supreme Court of the United States.^ But in Maryland, a judgment rendered without notice, personal or constructive, to the defendant, or appearance b}* him, is wholly void, though property be attached.^ And so in Illinois and Nebraska.* And in Michigan, under a statute in these words : " If a copy of the attachment shall not have been served upon any of the defendants, and none of them shall appear in the suit, the plaintiff, on filing an affidavit of the publication of the notice hereinbefore required for six successive weeks, may file his declar- ation in the suit, and proceed therein, as if a copy of such attach- ment had been served upon the defendants ; " it was held, that where there was no personal service, the publication of notice was necessary to enable the court to obtain jurisdiction, and no judgment was valid without it, and no title passed through a sale made under it.^ And in that State, where the statute required the notice to be published within thirty days after the return day of the writ, it was held, that if the publication did not take place within that time, though it was made afterwards, the court lost jurisdiction, and the attachment proceedings were void.^ And in Wisconsin, strict compliance with the requirements of the law in regard to publication is considered necessary to the exercise of jurisdiction. Therefore, where the statute provided that "in all cases where publication is made, the complaint shall be first filed, and the summons as published shall state the time and place of such filing," a publication made before the com- plaint was filed, was held not to authorize the court to take juris- diction of the action, and that a judgment rendered upon such publication was void.' § 448 a. In this connection cases should be noticed which grew out of the war of the Rebellion, though it is not supposable that their like will ever again arise in the history of this country. No principle is more axiomatic than that no one shall be con- demned in person or property without notice, and an opportunity to be heard in his defence. Such notice may be actual or con- structive, as prescribed by law. Where actual notice is required ^ Crowell V. Johnson, 2 Nebraska, 14G. ^ King v. Harrington, 14 Michigan, 532. 2 Cooper V. Reynolds, 10 Wallace, 308. « Millar v. Babcock, 29 Michigan, 526. 3 Clark V. Bryan, 16 Maryland, 171. "' Anderson v. Coburn, 27 Wisconsin, 4 Haywood v. Collins, Go' Illinois, 328; 558. "Wescott V. Archer, 12 Nebraska, 345. [377] § 448 a NOTICE TO defendants by publication, [chap. XVII. personal service, in a legal manner, of a due process, is a com- pliance with the requirements ; and in cases where constructive notice is allowed, the duty of the moving party is fulfilled if he complies in every respect with the law, usage, or rule of practice, as the case may be, which prescribes that mode of service.^ That the general doctrines as to constructive notice might receive some modification in connection with the extraordinary circumstances of that war, was to have been expected. What effect was due, in law, to notices by publication on one side of the military lines of the contending forces to parties on the other side ? This question came before the Supreme Court of the United States, first, in cases where there had been no attachment, and then in cases where title was claimed through attachment pro- ceedings. Of the former class, the first case was a bill in chancery to set aside a sale of stock in a corporation, made at jNIemphis, Ten- nessee, in 1863, under execution issued on a decree of foreclosure of a mortgage of the stock. There were three defendants in that decree, upon none of whom was there personal service of process, because all of them were within the Confederate lines ; two of them having been, by the Union military authorities, ordered to remove south of tlie lines of the United States forces, and not to return ; and the third having been within the Con- federate lines during the entire contest. Publication of notice to them to appear was made in accordance with the laws of Ten- nessee existing prior to the rebellion ; which was relied on as constructive notice to sustain the decree of foreclosure ; but the court held, that its publication was "a mere idle form," since they could not lawfully see or obey it ; and that the proceedings of foreclosure were, as to them, wliolly void and inoperative.^ This doctrine was afterwards repeated in a case from Louisi- ana; where, upon mortgages of real estate, proceedings "by executory process" were instituted for the seizure and sale of the property. The proceedings were in accordance with the laws of the State, and under them the land was sold, and conveyed to the purchaser. All this occurred, however, after lie had been ordered by the Union military authorities, to " leave New Orleans for the so-called Confederacy," and had done so, and gone to 1 Earle v. McVeigh, 91 U. S. 503. * Dean v. Nelson, 10 Wallace, 158. [378] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 448 a Mobile, where he remained until after the capture of that city by the Union forces. He then returned to New Orleans, and insti- tuted proceedings to vacate those under which the land had been sold. The court held them, as in the former case, void and inoperative.^ It will be observed that in each of these cases there was nothing for the jurisdiction of the court to rest upon but the notice by publication. Strictly speaking, the decisions do not bear on cases of attachment, in which, as just seen, if the writ be lawfully issued and levied on property^ the jurisdiction of the court is established quad in rem, and a sale of the property under the attachment proceedings is not invalidated by the failure to make due publication. Whether, in a case of attachment, a notice by publication made on one side of the military lines to a party forced hy military orders to go into and remain on the other side of those lines, would sustain the sale of the attached property, has not, so far as observed, been decided by the Supreme Court of the United States. But in a case in chancery, brought to set aside a sale of property made in an attachment proceeding, in which there was notice by publication, where it appeared that the defendant had voluntarily left Knoxville, Tennessee, shortly before the Union troops arrived there, and gone into the Con- federate territory, and remained there ; that court held, that the doctrine previously declared by it in the cases of mortgages did not apply; and the court said: "If a party voluntarily leaves his country or his residence for the purpose of engaging in hos- tilities against the former, he cannot be permitted to complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of his inability to return to, or to hold communication with, the place where the proceedings are con- ducted. That would be carrying the privilege of contra non va- lentem to an unreasonable extent. We think it cannot be set up in this case." ^ In a case, however, before the United States Circuit Court for the Western District of Virginia the question came up in direct form, in a proceeding in equity to recover the amount of a prom- issory note executed before the war broke out, by P., in Virginia, to D., in New York. Before the war, P. made an assignment to G., in Virginia, for the benefit of P.'s creditors. In 1861, this 1 Lasere v. Rochereau, 17 Wallace, 437. - Ludlow v. Ramsey, 11 Wallace, 581. [379] § 449 KOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. debt was confiscated by the Confederate authorities ; and in August, 1862, G. paid the amount of it, in Confederate currency, to those authorities. Before that payment, one R. had sued out in Virginia an attachment against D., and garnished G., and gave notice thereof to D., by publication, in August, 1862 ; but took no further step in the case until after the war ; when, without any renewed publication, he procured a judgment against G., as garnishee ; but it does not appear that G. paid the judgment. In the ecfuity proceeding, G.'s executrix relied on the payment made by G. under the decree of confiscation, and also on the judgment in the attachment case, claiming that the latter could not be collaterally impeached. But the court, holding that un- der the law of the State, due and legal publication was necessary to authorize the exercise of jurisdiction by attachment, decided that the publication made during the war was a nullity, and therefore that the judgment against the garnishee in the attach- ment suit was void, and said : " The publication was made dur- ing the war, when all intercourse or correspondence between the citizens of the belligerent States was interdicted. D. could not lawfully have received it, and if he had done so surreptitiously, he could not have obeyed the summons, and repaired to his de- fence before an insurrectionary tribunal. The question, there- fore, arises whether a publication under such circumstances fulfils the requirements or intentions of the law. Had these transactions transpired in a time of peace, there can be no doubt of the validity of this judgment. But a publication flagrante hello, purporting to be notice to a citizen of a belligerent State, is ' a mere idle form ; the party could not see or obey it.' " ^ § 448 h. Where the law required the clerk issuing an order of publication to designate the newspaper in whicli the order should be published, it was held, that the omission of the clerk to make such designation would not authorize the collateral impeachment of the judgment in the attachment suit.^ § 449. But where no process is served on the defendant, nor property attached, nor garnishee charged, nor appearance en- tered, a judgment against the defendant, based on a publication of the pendency of the suit will be void, and may be impeached > Dorr V. Gibboncy, 3 Hughes, 3a2. ' Kane i-. McCown, 55 Missouri, 181. [380] CHAP. XYII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 449 a collaterally, or otherwise, and forms no bar to a recovery sought in ojjposition to it, nor any foundation for a title claimed under it ; ^ notwithstanding the statute law of the State expressly authorize a judgment to be rendered against a defendant under such circumstances.^ In cases of this description, while a levy on property would justify the exercise of jurisdiction, and the gar- nishment of one indebted to the defendant would be regarded, l^ro hac vice, as equivalent to a levy,-^ yet the indebtedness of the garnishee must be shoivn ; and a judgment rendered against a garnishee who does not appear and answer, and against whom, in such case, the statute authorizes judgment to be rendered for the whole amount of the judgment against the defendant, without proof of his indebtedness to the defendant, will not sustain the jurisdiction.^ § 449 a. In cases where the property of the defendant is at- tached, but no service of process is had upon him, and publica- tion is made, the plaintiff can take judgment for no more than the amount sworn to by him in the affidavit for obtaining the attachment and interest thereon, if it be an interest-bearing debt, and costs.^ And in such cases, if the property attached be not sufficient to satisfy the judgment obtained, a further suit to recover the balance can only be maintained on the original cause of action ; and in such further suit, the defendant may set up and rely upon any defence he could have interposed had no suit by attachment been brought ; and the plaintiff cannot conclude the defence by producing the judgment in the attachment suit. That judgment is only conclusive of the fact that such a procee'd- ing was had.^ 1 Ajite, § 5 ; Eaton v. Badger, 33 New that tlie attachment of property of the Hanip. 228 ; Carleton v. Washington Ins. defendant must afBrmatively appear ; Co., 35 Ibid. 162 ; Smith v. McCutchen, and tliat the return did not show that 38 Missouri, 415 ; Abbott v. Sheppard, any property of his had been attached. 44 Ibid. 273 ; Bruce v. Cloutman, 45 New Repine v. McPherson, 2 Kansas, 340. Hamp. .37 ; Cooper v. Smitli, 25 Iowa, ^ Pennoyer v. Neff, 95 United States, 269. In Kansas, wliere property was at- 714. tached, but tlie sheriffs return did not ^ Thompson v. Allen, 4 Stewart & show it to be tlie property of the defend- Porter, 184. ant ; and there was no service of process * Haggerty r. Ward, 25 Texas, 144. upon the defendant, but notice by publi- ° Henrie v. Sweasey. 5 Blackford, 273; cation; tlie judgment rendered in the Rowley i-. Berrian, 12 Illinois, 198 ; Hob- case was held to be void, because such son v. Emporium R. E. & M. Co., 42 Ibid, notice was available only when the plain- 306 ; Forsyth v. Warren, 62 Ibid. 68. tiff' sought to subject the defendant's ^ Bliss v. Heasty, 61 Illinois, 338. See property to the payment of his claim : ante, § 5. [381] §451 GAKNISHMENT. — GENEBAL VIEWS. [CHAP. XVIU. CHAPTER XVIII. GAENISHMENT. — GENERAL VIEWS. — DIVISION OF THE SUBJECT. § 450. We come now to that operation of an attacbment, whereby property that cannot be seized may be reached by the process, and debts due to the defendant may be subjected to the payment of his debts. This hatter is the sole and distinctive feature of attachment by the custom of London, from which, as before remarked, have sprung the systems of attachment laws in the United States. § 451. The peculiar operation of the process, by which effects of the defendant which cannot be seized and taken into custody may still be rendered liable to the payment of his debts, has repeived the designation of garnishment} or warning, and the person in whose hands such effects are attached is styled a gar- nish^e, because of his being garniahed,^ or warned, not to pay the money or deliver the property of the defendant in his hands to him, but to appear and answer the plaintiff's suit.^ Tliis desig- na.tiou exists in all the States, except those of New England, where the party so warned is called a trustee^ and the process under which he is warned is called trmtee process. In Vermont and Connecticut, he is also sometimes called a factor, and the ^vocQ^^, factorizing process. The terms garnishment and garnishee beino", however, so nearly of universal use, will be retained throughout this work, 1 In Kelli.in.'s Norman Dictionary the avoided the very prevalent corruption oi ori^ginal of this term is given, as follows : it into " garnishecd," which di^figurc'S the Garner, garnisiier, to warn, to sum- Reports of this country. I liave, with mons. Garnishkment, garnissemknt, equal care, shunned the displacement of GARNiSHANT, GARNEYSEiNT, Warning, tlic words " gamish " and " gamisiung," summons, notice. by "garnisliee" (used as a verb), and '•^ Tliis being the first instance of the " garnishceing " use of tiiis word in this hook, I deem it •'' Priv. Londini, 250 ; Coaiyns's Digest, proper to remark, that I have studiously Allachiucnt, E. [382] CHAP. XVIII.] GAENISHMENT. — GE^^ERAL VIEWS. § 451 a § 451 a. Throughout the United States garnishment is a purely statutory proceeding, and cannot be pushed in its operation beyond the statutorj^ authority under which it is resorted to. Thus, unless the statute expressly so provide, no effects of the defendant, coming into the garnishee's hands, or indebtedness accruing from the garnishee to the defendant, after the garnish- ment, are bound thereby.^ So, if a garnishee die before he has answered, his administrator cannot be required, unless by express statute, to take his place and answer the interrogatories pro- pounded by the plaintiff. ^ So, where a Safe Deposit Company was summoned as garnishee of one who rented a safe in its vaults, the contents of which did not appear ; and the court was asked to order the garnishee to open the safe and file an inventory of its contents ; the order was refused because there was no author- ity in the court for such a proceeding.^ So, where a bank was garnished, in whose vault was a small trunk, deposited there by the defendant, of the contents of which no officer of the bank had any knowledge ; it was held, that the garnishee could not be charged, because it did not appear that the trunk contained attach- able effects ; and the court, while recognizing the English doctrine, that an officer, in the service of an execution, may break open the defendant's private trunk, for the purpose of selling the contents, if they are liable to execution, yet said that the officer must first obtain lawful possession of the trunk ; and to that the court could not help him in the pending case.* So, where it was sought to charge one as garnishee of A., on account of a debt due from the garnishee to the firm of A. & B., and the court was asked to cite A. and B. to appear and litigate their respective rights in the debt, so as to enable the plaintiff to show that, in fact, B. had no 1 Pos^ § 667 ; Bliss ?'. Smith, 78 Illinois, claimed that there was property of the 859 ; HotFman v. Fitzwilliam, 81 Ibid. 521 ; defendant, was sustained, as necessary Sievers r. Woodburn, S. W. Co., 43 Miclii- to enable the sheriff to e.xecute the writ, gan, 275. United States v. Graff, 67 Barbour, o04. 2 Tate V. Morehead, 65 North Carolina, * Bottom v. Clarke, 7 Cusliing, 487. 681. See Welch v. Gurley, 2 Haywood But in Georgia, where a box was de- (N. C), 334. Gee v. Warwick, Ibid. 354; posited by the defendant in tlie gar- White V. Ledyard, 48 Michigan, 264 ; nishee's store, without any liability being Brecht v. Corby, 7 Missouri Appeal, 300. assumed by the latter in reference to it ; 3 Gregg V. Nilson, 1 Legal Gazette R. and after the garnishment he permitted 128 ; 8 Pliiladelphia, 91. In New York, the defendant to remove it ; he was an order by the court to the sheriff to charged as garnisliee for the value of its open a safe and tin box in possession of contents, upon the value being proved, such a company, and in which it was Loyless v. Hodges, 44 Georgia, 647. [383] § 451 h GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. interest in the debt, the request was refused, because the attach- ment law did not authorize such a proceeding.^ § 451 h. Garnishment rests wholly upon judicial process, and depends upon the due pursuit of the steps prescribed by law for its prosecution. It can borrow no aid from volunteered acts of the garnishee. Such acts will be regarded as void, so far as they interfere with the rights of third parties. Thus where, under a law requiring the garnishment process to be personally served on the garnishee, one acknowledged and accepted service by writing on the petition, it was held, that he had no right to do so, and that the acceptance or waiver of service was a nullity, as against other attaching creditors ; ^ and equally so as against an assignee of the debt in respect of which the garnishee was charged.^ So, where the statute prescribed that process should be served on a corporation by service on the president, or any director or mana- ger thereof, an admission of service of garnishment by the attor- ney of a corporation was held insufficient to give the court jurisdiction of the corporation.* So, where no legal service of process had been made on a corporation as garnishee, and yet the secretary of the corporation appeared and answered, and 1 Sheedy v. Second Nat. Bank, 62 but it dops not appear that any question Missouri, 17. Jis to the legality of the proceeding was 2 Scliindler v. Smith, 18 Louisiana raised ; and the case cannot therefore be Annual, 476. The court said : " The considered as militating against the posi- parnishee, in the eyes of the law, is a tion taken in the text. Roy v. Heard, 38 mere stakeholder, a custodian of the Mississippi, 544. In Vermont, where the property attached in his hands ; lie has " trustee process " has the character and no pecuniary interest in the matter; he effect of a summons, it was decided that has no cost to pay, and therefore none to service thereof on a trustee [garnishee] save ; his business is to let the law take by his accepting service, is valid to hold its course between the litigants; he has the funds in his hands as against a subse- ro right to accept or waive service of quent assignee. Gaboon v. Morgan, 38 the proceeding, thereby favoring one Vermont, 234. In Texas, it was held, party at tlie expense and injury of an- that the doctrine stated in this section other, and creating actually a privilege does not apply in the suit of a creditor with priority in favor of one creditor to against the garnishee himself, on his the prejudice of another." See Citizens answer, when he has voluntarily ap- Bank r. Payne, 21 Louisiana Annual, peared before the officer, and no rights 380 ; Hodges v. Graliam, 25 Ibid. ?>G5 ; of an opposing creditor are involved. Phelps V. BoughtoM, 27 Ibid. -502 ; Wood- Freeman v. Miller, 51 Texas, 443. folk V. Whitworth, 5 Coldwell, 501. In ^ Ilebel v. Amazon Ins. Co., 33 Michi- Mississippi, a case is reported where there gan, 400. was no service of process upon the gar- * Northern Central R. Co. v. Rider, 45 nishce, but he appeared and answered, Maryland, 24. and the court took action on his answer ; [384] CHAP. XVIII.] GAP.NISHMEHT. — GENERAL VIEWS. § 451 d made no objection to the sufficiency of the service ; it was held that no judgment could be rendered against the corporation.^ So, where a garnishment was made after the return day of the writ, and the garnishee appeared and answered, and judgment was rendered against him ; it was decided, that the process under which he was summoned had no validity ; that he therefore stood as though he had voluntarily appeared and answered interrogato- ries without notice ; and the judgment against him was set aside as agrainst other creditors.^ But where a writ was issued on the 28th of April, and named as the return day April 10th of the same year, and the garnishee appeared and answered on the 10th of May ; it was considered, that tlie return day named in the writ was obviously a mere clerical error which did not invalidate the proceedings, and that the appearance and answer of the garnishee was a waiver of the error.^ § 451 c. Garnishment is a process, not a pleading, and serves its purpose when it brings the garnishee before the court. If there are defects in the process, they are the subject of a motion to quash,* or of a plea in abatement, and cannot be reached by demurrer.^ § 451 d. In garnishment (as we have seen is the case where an attachment is levied on property^) it is the return of the offi- cer upon the writ which constitutes the attachment of the debt due from the garnishee ; and the proceeding will fail if the return do not show a garnishment in conformity to the statute. Thus, where the statute required the officer, when a garnishee is to be summoned, to " declare to the person in possession of goods, chattels, money, and evidences of debt, that he attaches the same in his hands," and the officer returned that he had " served the writ by summoning A. as garnishee, to appear and answer touching his indebtedness to B., the defendant; " the return was held insufficient and the writ was quashed.'' - Raymond v. Rockland Co., 40 Conn. * Stevens i-. Dillman, 86 Illinois, 233. 401. ^ Curry i'. Woodward, 50 Alabama, 2 Southern Bank v. McDonald, 46 Mis- 258. souri, 31. See Deslia v. Baker, 3 Arkan- 6 Ante, § 205. sas, 509. "! Norvell v. Porter, 62 Missouri, 309. 3 Wellover v. Soule, 30 Michigan, 481. 25 [385] § 452 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. § 452. Garnishment is in the nature of a proceeding in rem, since its aim is to invest the plaintiff with the right and power to appropriate, to the satisfaction of his claim against the defendant, property of the defendant's in the garnishee's hands, or a debt due from the garnishee to the defendant.^ It is, in effect, a suit by the defendant, in the plaintiff's name, against the garnishee, without reference to the defendant's concurrence, and, indeed, in opposition to his will. Hence the plaintiff usually occupies, as against the garnishee, just the position of the defendant, with no more rights than the defendant had, and liable to be met by any defence which the garnishee might make against an action by the defendant.2 Where, however, the garnishee holds property of the defendant under a fraudulent transfer or arrangement, the right of the plaintiff to hold the garnishee is not limited by the defendant's right against the latter. And there are other cases, as we shall hereafter see, in which a garnishee may be held, though the defendant could not at the time of the garnishment maintain an action against him.'^ Garnishment is not only in effect a suit by the defendant in the plaintiff's name against the garnishee, but it has been held to be in fact, a suit, in the legal acceptation of the term. In Alabama, garnishment was regarded as a suit, where an administrator was garnished within six months after grant of letters of administra- tion, and the proceeding was objected to, because of a statutory provision which declared that " no suit must be commenced against an administrator as such, until six months after the grant of letters of administration."^ In the Circuit Court of the United States for Arkansas, the question came up in this shape. A., a citizen of Arkansas, recovered judgment in that court against B.,a citizen of Texas, and issued execution thereon, under which, in conformity with a statute of Arkansas, C, a citizen of 1 In Strong v. Smith, 1 Metcalf, 470, » Pout, § 464. the Supreme Court of Massacluisctts < Moore i'. Stainton, 22 Alabama, 831 ; said: " Tlie trustee process operates as a Travis u. Tartt, 8 Ibid. 574; Eihnonson species of compulsory statute assignment, v. DeKalb Count}', 51 Ibid. lOo. See by which a creditor may obtain that by Thorn t: Woodruff, 5 Arkan.sas, 55; Gor- ojieration of law which his debtor might man v. Swaggerty, 4 Sneed, 500 ; Jones voluntarily assign to him, in payment of v. New York & Erie li. M. Co., 1 Grant, his debt." See Campbell v. Nesbitt, 7 457; Mallcy v. Altman, 14 Wisconsin, Nebraska, 300. 2'2 ; Caldwell v. Stewart, 30 Iowa, 370; 2 Daniels v. Clark, 38 Iowa, 550; Delacroix i'. Hart, 24 Louisiana Annual, Mooney v. U. P. R. Co., 53 Ibid.34G. 141 ; Dewey v. Garvey, 130 Mass. 86. [38r>] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 453 that State, was summoned as garnishee. The question was, whether, as the phiintiff and the garnishee were citizens of the same State, the court had jurisdiction of the proceeding. If the garnishment was a suit, it came within the provision pro- hibiting the court from taking jurisdiction of a suit between citizens of the same State. The court, in the following terms, held it to be a suit : " The proceeding must be regarded as a civil suit, and not as a process of execution to enforce a judg- ment already rendered. It may be used as a means to obtain satisfaction of a demand, in the same manner as a suit may be resorted to on a judgment of another State, with a view to coerce the payment of such judgment. In this proceeding the parties have day in court; an issue of fact may be tried by a jury, evidence adduced, judgment rendered, costs adjudged, and execution issued on the judgment. It is in every respect a suit, in which the primary object is to obtain judgment against the garnishee, and certainly cannot with any plausibility be treated as process of execution, or as part of the execution pro- cess ; for if so, there could be no necessity or propriety in resorting to this forum to investigate the relations of debtor and creditor." ^ Garnishment being a suit, it is the right of the plaintiff to dis- miss or discontinue it at any time before verdict ; and the gar- nishee has no right to object to the dismissal.^ § 453. Garnishment is an effectual attachment of the effects of the defendant in the garnishee's hands,^ differing in no essential respect from attachment by levy, except, as is said, that the plaintiff does not acquire a clear and full lien upon the specific property in the garnishee's possession, but only such a lien as gives him the right to hold the garnishee personally liable for it or its value,* and to restrain the garnishee from paying his debt 1 Tunst.ill V. Worthinfrton, Hempstead, Thompson v. Allen, 4 Stewart & Porter, 662. Std contra, Kidderlin v. Myer, 2 184; Bryan v. Lashlcy, 13 Sniedes & Miles, 242. Marshall, 284 ; Watkins v. Field, 6 Ar- 2 Griel v. Loftin, 65 Alabama, 501. kansas, 391 ; INIartin v. Foreman, 18 Ibid. 3 Kennedy v. Brent, 6 Cranch, 187 ; 249 ; Hacker v. Stevens, 4 McLean, 535. Parkeri". Kinsman, 8 Mass. 436; Bl.aisdell < Walcott v. Keith, 2 Foster, 196; V. Ladd, 14 New Hamp. 129; Burlingame Moore v. Holt, 10 Grattan, 284 ; Johnson r. Bell, 16 Mass. 318; Swett v. Brown, v. Gorham, 6 California, 195. It is a 5 Pick. 178 ; Tindell v. Wall, Busbee, 3 ; common expression by courts, that by Tillinghast r. Johnson, 5 Alabama, 514 ; garnishment the plaintiff acquires a lien [387] § 453 GAENISHMENT. — GENERAL VIEWS. [CHAP. XVni. to the defendant.! The defendant's rights in the property in the garnishee's hands are so far extinguished, as to prevent the defendant's making any disposition of it whicli would interfere with its suhjection to the payment of the plaintiff's demand, when that shall have been legally perfected ; but for every purpose of making any demand which may be necessary to fix the garnishee's liability to him, or of securing it by legal proceedings or other- wise, his rights remain unimpaired by the pending garnishment, but of course can be exercised only in subordination to the lien thereby created.^ From the time of the garnishment, the effects in the garnishee's possession are considered as in custodia legis, and the garnishee is bound to keep them in safety, and, it was said by the Supreme Court of the United States, is not at liberty to change them, to convert them into money, or to exercise any act of ownership over them.^ He acquires a special property in them, as agent of the court,^ and is entitled to hold them, until the question of his liability is determined, as well against the de- fendant as against any subsequent purchaser or pledgee ;5 even though the attachment be against a person other than the osten- sible owner from whom the garnishee received them.*^ Pie has no right to deliver to the defendant or other person any of the effects of the latter which were in his hands when he was gar- nished, or which came into them afterwards, if the attachment legally binds effects subsequently received by him ; ^ nor can they on the debt due from the garnishee to the was termed an " inchoate lien." Wilder defendant ; but perhaps the view stated v. Weatlierliead, 32 Vermont, 765. See in the text is the more proper one. In In re Peck, IG Nat. Bankruptcy Kegister, Illinois it was lield, that garnishment im- 43. poses no lien upon the effects in the gar- i Parker v. Farr, 2 Browne, 331 ; Par- nishee's iiands, and does not put tliem in ker v. Parker, 2 Hill Cli'y, 35. custodia lerjis. Bigelow v. Andress, 31 ^ Hicks i: Gleason, 20 Vermont, 139; Illinois, 322. But see Smith v. Clinton Bank of tlie State of Missouri v. Bredow, Bridge' Co., 13 Bradwell, 572. In South 31 Missouri, 523. Carolina, on the other hand, the Court of ^ Brashear v. West, 7 Peters, G08 ; Appeals said : " Our opinion is, that an Mattingly v. Boyd, 20 Howard Sup. Ct. actual seizure is not essential to create 128; Biggs r. Kouns, 7 Dana. 405. See the attachment lien, but that the service Stanicla v. Haymond, 4 Cushmg, ol4, of the writ on one in whose custody or where, under the Massachusetts statute, control tlie assets of tiie absent debtor a view is entertained, which, so far as may be, is sufficient to make tlie whole that State is concerned, materially mod- assets in his hands secure and liable in ifies the garnislice's position, law, to answer any judgment that sliall * Erskine v. Staley, 12 Leigh, 40G. be secured and awar.led upon that pro- » Walcott v. Keith, 2 Foster, 1%. cess." Kenneker v. Davis, 10 Richard- « Stiles r. Davis, I Black, 101. son Eq. 289. In Vermont, garnishment ^ Aldrich v. Woodcock, 10 New Hamp. [388] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 453 a be lawfully levied on and taken out of his possession ;i but if that should be done, the officer seizing must hold them subject to the- lien of the creditor who effected the garnishment.^ If so taken,^ or if taken from him by a wrong-doer/ it will not dischai-ge the garnishee's liability ; but it may furnish ground for delaying pro- ceedings until damages can be recovered of the party taking them.^ But if the garnishing plaintiff cause a levy and sale under execution to be made of the property, he cannot after- wards hold the garnishee in respect thereof.^ § 453 a. The position taken by the Supreme Court of the United States, as stated in the next preceding section, that the garnishee is bound to keep the effects in his hands saft4y, and is not at liberty to change them, to convert them into money, or to exercise any act of ownership over them, must be understood with reference to the facts of the case before that court. There the property in the garnishee's hands was merchandise ; concerning which, in the particular case, the position taken was undoubtedly correct. But that rule is not capable of universal application. Thus, where goods were consigned to a factor for sale, on which he had made advances, and after making them he was summoned as garnishee of the consignor ; the question Avas as to the amount for which he should be charged. At the time of the garnishment the goods were worth $1,856 ; but he thereafter sold them for $1,260. No fraud in the sale was alleged. The plaintiff contended that the former sum should be the measure of the garnishee's liability : which brought up the question whether the garnishment arrested the factor's power to sell the goods. If it did, the lia- bility of the garnishee was for the larger sum ; otherwise for the smaller. It was held, that the power of sale was not cut off." 99; Parker v. Parker, 2 Hill Ch'y, 35; ^ Goddard v. Hapgood, 25 Vermont, Loyless v. Hodges, 44 Georgia, G47 ; Ste- 351 ; Clapp i'. Rogers, 38 New Ilamp. 435. vens V. Dillman, 86 Illinois, 233. " Baugh v. Kirkpatrick, 54 Penn. State, 1 Scholefield v. Bradlee, 8 Martin, 495 ; 84. The court said : " It is contended the Erskine v. Staley, 12 Leigh, 406. attachment arrested their power to sell, '^ Burlingame v. Bell, 16 Mass. 318; leaving the goods tied up in their hands. Swett t'. Brown, 5 Pick. 178. We cannot assent to this. We are bound 3 Parker v. Kinsman, 8 Mass. 436. to take notice of the general usages gov- * Despatch Line v. Bellamy Man. Co., erning the contracts of factors and com- 12 New Hamp. 205. mission merchants. By the order to sell, ^ Despatch Line v. Bellamy Man. Co., and advances made by the factors, 'an in- 12 New Hamp. 205. terest was acquired in the goods with a [389J § 454 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. And where the attachment of cJioses in action is authorized by statute, the rule laid down by the Supreme Court of the United States would hardly seem capable of strict application. In Mis- souri this is authorized, and a garnishee may there be charged in respect of cJioses in action in his hands belonging to the defend- ant. In a case which arose there, a bank was summoned as gar- nishee, having in its possession, for collection, a bill of exchange belonging to the defendant, upon which it brought suit against the acceptor ; who set up the garnishment of the bank as a bar to its right to maintain an action on the bill ; but it was held, that the bank's right of action was not lost by the fact of the garnishment.^ § 453 h. Garnishment cannot be extended in its operation beyond the mere point of reaching the defendant's effects in the garnishee's hands. It creates no lien on the real or personal estate of the garnishee. A judgment, therefore, against the per- sonal representatives of the garnishee, who had died during the pendency of the proceedings, does not relate back to the time of serving the attachment, nor bind the garnishee's estate ; ^ nor does it give the attaching creditor a preference over other cred- itors of the garnishee's estate.^ § 454. Garnishment cannot be supplemented by injunction or other proceeding in equity, nor can any distinct proceeding, not authorized by statute, be based on the garnishment, to obtain right to soil which could not be affected in pledge. So here the garnishees, as by an after-attachment. It would be de- factors to sell, having made advance- leterious to trade, and the rights of those nients, had a power coupled with an in- engaged in it, to hold that goods for- terest, which was irrevocable cxcejjt upon warded to a factor to be sold, may be tied a tender of tlieir charges. Added to the up in liis hands until the creditor of the injury to them by protracted storage, a C(msignor is ready to proceed with his ex- fall in price miglit leave their advances edition to convert them. . . . The attach- partially unprotected. If the plaintiff ing creditor stands upon no higher footing was desirous to retain the goods for an than his debtors in relation to the gar- advance in price, it was bis duty to fur- nisliee. What right would the debtor nish the money to relieve tliem of the himself have to say to the garnishee, ' you lien of tlie garni.sliecs, and to direct the shall not sell,' without tendering him his sheriflT to take them into custody." advances and making liim whole ? Even i Bank of tlie State of Missouri v. Bre- an execution cannot be levied of goods in dow, 31 Missouri, •'■)2;]. pawn, so as to take them out of the - Parker i--. Parker, 2 Hill Ch'y, 35. pawnee's posses.sion, without tendering 3 r>arkeri;. Farr, 2 Browne, 331. iiini the money for which he holds them [390] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 454 security for the payment of the judgment which may be recovered against the garnishee. Thus where, in a proceeding in chancery, certain parties were garnished, and afterwards the complainant filed a supplemental bill, suggesting that they were bankrupt, and had sent large quantities of their goods to certain parties for sale at auction, and that, if the proceeds of the sale of the goods should be paid to the garnishees, they would contrive so to dispose of them, that the complainant would lose all benefit of the decree ; and the court thereupon granted a restraining order on the auc- tioneers ; and upon their answering, showing the balance remain- ing in their hands, they were, on the final hearing, decreed to pay it to the complainant ; it was held, that the proceeding was un- authorized, i So where, in a suit in favor of A. against B., in a Circuit Court of the United States, C. was garnished ; against Avhom a suit by B. was then pending in a State court, in which judgment was afterwards rendered, and execution issued thereon, against C; and thereupon A. sought an injunction to restrain proceedings under the execution until C. should answer in the United States court, and the question of liis liability as garnishee should be passed upon by that court ; the injunction was refused, not only because the jurisdiction of the State court had first at- tached, but because it was no case for equitable interposition in aid of the garnishment.^ And it has likewise been held, that gar- nishment will not sustain a bill in equity to restrain the garnishee from disposing of the defendant's property in his hands, until the plaintiff could obtain judgment and execution against the gar- nishee.^ Much less is there any authority for a Court of Chan- cery to attach a debt due to a debtor of the defendant, and apply it to the payment of the defendant's debt.* And under a judg- ment rendered against one as garnishee, out of whom nothing can be made on execution, it is held in Illinois, that there can be no proceeding by garnishment of his debtors, unless the law ex- pressly authorize it ; the proceeding must stop with the debtor of the defendant.^ 1 Wolf V. Tappan, 5 Dana, 361. See cess in order to prevent the collection of Goddin? V. Pierce, 13 Rhode Island, 532. the judiiment which he anticipates may 2 Arthur v. Batte, 42 Texas, 159. be rendered against him as garnishee, 3 Bigelow V. Andress, 81 Illinois, 322. was sustained. Moore v. Kidder, 55 New In New Hampshire, in an attachment Hamp. 488. proceeding in equity, a bill to restrain a * Jones v. Huntington, 9 Missouri, 249. garnishee from fraudulently putting his ^ Illinois C. R. R. Co. v. Weaver, 54 property beyond the reach of legal pro- Illinois, 819. [391] § 454 h GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. § 454 a. Garnishment can have no retroactive effect, so as to affect prior completed transactions between the garnishee and the defendant, or to subject the former to liability on account of property of the latter which was in his hands previous to, but not at the time of, the garnishment. Thus, where the garnishee, prior to the garnishment, had had property of the defendant in his possession under a secret trust, which would have been void as against creditors ; but before he was garnished he had de- livered the property to the defendant ; it was held, that he could not be charged.! And where garnishment was authorized under an execution, and the execution was a lieu on the defendant's personalty from the time of its issue ; it was held, that the garnishment did not relate back to that time, but took effect only from the date of its service, and could not defeat an inter- vening attachment, served between the time of the issue of the execution and that of the garnishment under it,'-^ § 454 h. Garnishment can have no effect to overthrow trusts, in order to reach moneys supposed to belong to a debtor. What- ever money or property of the debtor is sought to be reached by this proceeding, must be his absolutely, disencumbered of any trust declared in his favor, or that of any other person. Thus, where a testator bequeathed to his son a sum of money "/or the support of himself and family , and for no other purpose ;" and a part of that sum had been recovered, and paid to the attorney of the son, in whose hands it was attached ; the court held, tliat the money was a trust fund under the will, in which the son had no such absolute right as to authorize its being attached for his debts, either before or after it came into his hands. " The will," said the court, " should be carried out according to the intent of the testator. And we can have no possible doubt that it was his object to create the money in the hands of his son a trust fund for the use specified in the will. The testator not only used affirm- ative words, appropriate to create a trust fund, but he saw fit at the same time to add a negative. The words are, — ' for the ^ Bailey v. Ross, 20 New Ilamp. 302. though the debt suerl for existed prior to See Emerson v. Wallace, Ibid. 507. In the gift, if the case does not disclose that Whittiery. I'rescott, 48 Maine, 307, it was the donor was insolvent or largely in- heltl, that one wlio had received a gratui- debted. tflus gift of money, will not be chargeable ^ English v. King, 10 Heiskell, 606. therefor as garnishee of the donor, al- [392] CHAP. XV'III.] GARNISHMENT. — GENERAL VIEWS. § 45-4 h support of himself and family, and /or no other purpose.'' To hold that under this will the sou took the money absolutely as his own, and not as a trust fund, would be to pervert the use of lan- guage, and the obvious intent of the testator." ^ So, where prop- erty was devised to a trustee, " to hold upon trust, to collect and receive the rents and income . . . and to pay the said rents and income ... to and for the support and maintenance of my son C, during the term of his natural life, with the intent and pur- pose, that the said trustee may either pay the said income, or such portion thereof as he may think proper, into the hands uf my said son, or disburse the same in such way as to the trustee may seem best for his comfortable maintenance ; such payments and disbursements to be at all times at the sole and absolute discretion of the said trustee ; " and the trustee was summoned as garnishee of C. ; the court held, that to charge him would utterly defeat the intent of the testator in creating the trust, and he was therefore, and for other reasons, discharged.^ So, a railroad company, through its assistant ti'easurer, deposited with a firm of brokers in New York city a sum of money, and took from them a receipt therefor in these words : " Received from J. M. C. R. $25,000 in trust, to apply the same to an equal amount of the coupons of the first mortgage bonds and consolidated mortgage bonds of the M. C. R. Co., in the order in which such coupons shall be pre- sented to us for payment, after having been duly identified for payment at our office by stamp impressed thereon ; the said money not to be subject to the control of said compan}-, otherwise than for the payment of said coupons as above described." This money was part of a larger sum raised by the railroad company for the express purpose of paying the coupons on the bonds mentioned, and when received by the brokers was placed by them on their books to the credit of " Coupon trust account." When part of the sum had been paid out, an attachment against the M. C. R. Co., was laid in their hands ; but it was held, that the transaction was an absolute and irrevocable appropriation of the fund deposited in trust, for the uses mentioned in the receipt, 1 Wliite y. White, 30 Vermont, 338. Hams, 1 Cusliing, 490; McIIvaine v. "^ Keyser r. Mitchell, G7 Penn. State, Lancaster, 42 iNIissouri, 90 ; Lackland v. 473. See White v. Jenkins, 16 Mass. 62 ; Garesche', 56 Ibid. 267 ; Banfield i'. Wig- Brigden v. Gill, Ibid. 522; Hall v. Wil- gin, 58 New Hamp. 155; Haust v. Bur- liams, 120 Ibid. 344; Hinckley v, Wil- gess, 3 Hughes, 560. [393] § 455 a G AENISHMENT. — GENERAL VIEWS. [CHAP. XVIII. and that the attachment was subordinate to the rights of the holders of coupons under the trust.^ § 455. In garnishment, as in the case of a levy, attachments take precedence in the order of their service. The right of several attaching creditors, as between themselves, by virtue of their suc- cessive processes, to reach the effects of their common debtor in the hands of a garnishee, is a matter of strict law, and unless the creditor in the prior process perfects his right as against the gar- nishee, by obtaining final judgment that may be enforced in the manner provided by law, his process will fail to postpone or de- feat the subsequent attachers in reaching such effects. Thus, where a garnishee, under an arrangement with the first of several attaching creditors and the defendant, paid his debt to such cred- itor, and the latter did not prosecute his suit to judgment against the garnishee and the defendant, the garnishee was held still liable to a subsequent attaching creditor, who completed his judg- ment, and whose process was served prior to such arrangement.^ And so, if a junior attachment be first ripened into a judgment, that gives no right to priority of recourse against the garnishee, over a writ previously served." § 455 a. It is not unusual for garnishments of the same person, on account of the same fund, to proceed from courts of different jurisdictions. In such a case there is no doubt that, for the pur- pose of applying the fund to the satisfaction of the plaintiff's demand, the court making the first garnishment has the full con- trol of the fund ; but beyond that its control does not extend ; nor does it preclude a recognition of the second garnishment by a different court, which will bind the fund, subject, of course, to be defeated if the whole fund is called for under the first.* Where, therefore, an attachment was first levied on property by a U. S. marslial under an attachment issued out of a Federal Court ; and afterwards the same property was attaclied by gar- nishment of the marshal under process of a State court ; and 1 TJogers Locomotive Works v. Kelly, Moore v. Holt, 10 Grattan, 284 ; Talbot 2f) New York Siiprt-iiie Ct. 3'J9; aflinned v. Hardiiifi, 10 Missouri, 350; Johnson v. in 88 New York, 2:)4. Griflitli, 2 Craiicli C. C. 109; Arledge v. 2 Wilder v. Weatlierhead, 32 Vermont, White, 1 Head, 241. 765; yl;(/c, § 2C2. ~ ■* 'I'lie Olivia A. Carrigan, 7 Federal 3 Erskine i-. Stalcy, 12 Leigh, 40G; Keporter, 507. [394] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 457 after that another attachment from the Federal Court was levied ou the same property ; and from the sale under the first attach- ment after satisfying it, there remained in the registry of the Federal Court a surplus ; it was held by the U. S. Circuit Court in Missouri, that the attachment issued out of the State court, being prior in time to the second issued from the Federal Court, was entitled to hold the surplus.^ And where one has been sub- jected to garnishment indifferent jurisdictions, and makes known to the court in which he was last served the fact of the previous ■rarnishment, that court will take such measures as it may deem expedient, to protect him from double liability, and at the same time to continue his responsibility to its authority, in the event of his release from that of the court in which he was previously garnished. In such a case the Supreme Court of Louisiana considered, that there should be a stay of proceedings for a seasonable time, or that the plaintiff should give proper security to the garnishee, to indemnify him against loss from the previous attachment.^ § 456. After the foregoing general remarks, the first inquiry naturally presenting itself is for general principles regulating the liability of garnishees. This liability may result, as we shall hereafter fully see, either from the possession b}^ the garnishee, when summoned, of personal property belonging to the defend- ant, or from his being, at that time, indebted to the defendant. It will, therefore, at once be apparent, that many questions must arise, as to the nature and condition of the property in the gar- nishee's hands, and the nature, extent, and qualifying circum- stances of his liability as a debtor of the defendant, necessarily involving the determination of many legal principles. These questions will be considered in their appropriate order : at pres- ent it is important to lay the groundwork of general principles. § 457. It is necessary, in the first place, to bear in mind, that, wherever the distinction exists between common law and chan- cery jurisdiction, courts of law cannot undertake, by garnish- ment, to settle equities between the parties, in order to subject an equitable demand which the defendant may have against the 1 Bates V. Days, 17 Federal Reporter, ^ Woodruff v. French, 6 Louisiana An- 167. nual, 62. [395] §457 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. garnishee, to the payment of the defendant's debt. Where this distinction does not exist, and both branches of jurisdiction are, as it were, fused into one, or where, as in some States, courts of chancery are vested with jurisdiction in attachment cases, the rule may be different.^ In courts of law, however, garnishment must be considered as a legal and not an equitable proceeding, and consequently the defendant's rights to the fund or property sought to be condemned must be legal, as contradistinguished from equitable. If this rule be departed from, there will be no stopping point, and we must go the full length, and claim that the equitable rights of the defendant may be attached by gar- nishment in a suit at law, and thus a court of law will become invested with cognizance of equitable rights, and therefore bound to ascertain and condemn them, however difficult the task may be, or however incompetent the powers of the court for tliis pur- pose.^ Thus, where a garnishee was sought to be charged, on the ground that he was indebted to the defendant in respect of a 1 In Hassle v. G. I. W. U. Congrega- tion, 35 California, 378, the court made tlie following judicious remarks upon the suggestion contained in tliis sentence : "In view of tlie fact that, under our sys- tem of practice, law and equity jurisdic- tions are blended, it is claimed that the mere equitable rights of the defendant may be reached by this process, and a suggestion that such may be the case, thrown out by Drake in his work on At- tachment (§ 457), is cited in support of the doctrine. Wliatever weight there might be in the suggestion, if our attach- ment laws were administered only by our District Courts, there certainly can be no weight attached to it, in view of the fact that our attachment laws are made appli- cable to Justices' Courts. If our District Courts can pursue the equitable rights or claims of the defendant, and subject them to the satisfaction of the plaintiff's judg- ment, by parity of reason our Justices' Courts may do the same thing. Inde- pendent of tlie question wliether Justices' Courts under our Constitution can exer- cise jurisdiction in, equity, it will hardly be contended, we think, that our attach- ment laws sho\ild be read as conferring it, unless — which they do not — they contain expressions admitting of no other construction. If we admit that the equi- [396] table rights of the defendant can be reached in that way, we must go to the length of holding that our Justices' Courts can take cognizance of them, and must, if called upon, ascertain and con- demn them to the use of tlie plaintiff, however difficult the undertaking may be, or however inadequate tlie powers of those courts, or however incompetent their presiding officers. To such a length we are not prepared to go, until required to do so in language whicli will admit of no other interpretation." 2 Harrell v. Whitman, 19 Alabama, 135; Thomas v. Hopper, 5 Ibid, 442; Harris v. Miller, 71 Ibid. 26; Hoyt v. Swift, 13 Vermont, 129 ; May v. Baker, 15 Illinois, 89; Webster v. Steele, 75 Ibid. 544; Perry v. Tiiornton, 7 Rhode Island, 15 ; Clarke v. Farnum, Ibid. 174 ; Williams r. Gage, 40 INIississippi, 777 ; Mass. Nat. Bank v. Bullock, 120 Mass. 86 ; Sheedy v. Second Nat. Bank, 62 Missouri, 17. In Godden v. Pierson, 42 Alabama, 370, it was held, that the plaintiff will not be permitted, in order to charge a garnishee, to affirm the validity of the sale of certain property by the defen- dant to the garnisiiec, in order to subject him to the payment of the purcliMse- nioney therefor, and at the same time attack the sale for fraud. CHAP. XYIII.] GARNISHMENT. — GENERAL VIEWS. § ^53 partnership which had existed between them, but the accounts of which had not been settled, it was held, that the proceeding could not be sustained ; that the partnership accounts could not be settled in that way, but only in equity .^ § 458. A fundamental doctrine of garnishment is, that the plaintiff does not acquire any greater rights against the garnishee than the defendant himself possesses. When, therefore, the attachment plaintiff seeks to avail himself of the rights of the defendant against the garnishee, his recourse against the latter must of necessity be limited by the extent of the garnishee's liability to the defendant.^ This principle is subject, however, to an exception, where the garnishee is in possession of effects of the defendant under a fraudulent transfer from the latter. There, though the defendant would have no claim against the garnishee, yet a creditor of the defendant can subject the effects in the gar- nishee's hands to his attachment.^ 1 Burnham v. Hopkinson, 17 New Hamp. 2-39 ; Treadwell v. Brown, 41 Ibid. 12. Nor can the garnishment of one part- ner in an action against his copartner, authorize the attaching plaintiff to main- tain a bill in equity against the latter for an account, so as to reach the debtor's interest in the partnersliip. Treadwell y. Brown, 43 New Hamp. 290. 2 Post, § 660; Harris v. Phoenix Ins. Co., 35 Conn. 310; Myer v. Liverpool, L. & G. Ins. Co., 40 Maryland, o95 ; Tup- per V. Cassell, 45 Mississippi, 352 ; United States V. Robertson, 5 Peters, 641 ; Wal- drou V. Wilcox, 13 Rhode Island, 518 ; Oregon R. & N. Co. v. Gates, 10 Oregon, 514 ; Richardson v. Lester, 83 Illinois, 55; National Bank v. Staley, 9 Missouri Ap- peal, 140; Fenton v. BioL'k, 10 Ibid. 5-36 ; Fitzgerald v. HoUingsworth, 14 Nebraska, 188. 3 Lamb v. Stone, 11 Pick. 527. This was an action on the case by a creditor against a person to whom it was alleged the debtor had made a fraudulent sale of his property. The court held, that the action could not be maintained, because, 1. If the sale was fraudulent, the property was liable to attachment, after, as well as before, the sale ; and 2. If the property could not be come at to be attached spe- cifically, it might be reached in the pur- chaser's hands by garnishment. See United States v. Vaughan, 3 Binney, 394 ; Henry v. Murphy, 54 Alabama, 246; Lee v. Tabor, 8 Missouri, 322; Lack- land V. Garesche, 56 Ibid. 267. A strik- ing instance of making a garnishee liable for money of a defendant, fraudulently obtained by him, was this : The directors of a corporation, in order to induce A. to become a member of the board, offered him one hundred shares of the stock of the corporation ; and he accepted the same as full paid, but paid nothing tliere- for, and was elected a member of the board. In a few months, however, dif- ferences arose between him and the other directors, and by general consent he sold his stock to one of them for S1200; and his stock certificate was surrendered and cancelled, and a new certificate for the same stock was issued and delivered by the company to the purchaser. There- after A. was summoned as garnishee of the company, and the court held, that by a technical collusion with the directors he had become possessed of assets which the law holds sacred for the protection of creditors, and had made a profit from their conversion ; and he might therefore be held as a debtor of the corporation. Eyerman v. Krieckhaus, 7 Missouri Ap- peal, 455. [397] § 4G0 GARXISHMENT. — GENERAL VIEWS. [CHAP. XVIII. § 459. The plaintiff's right to hold a garnishee, exists only so long as, in the suit in which the garnishment takes place, he has a right to enforce his claim against the defendant. When his remed}^ against the latter is at an end, so is his recourse against the garnishee. That the latter may show that the plaintiffs right against him has been thus terminated, cannot be doubted. Thus, where one was garnished under an execution, lie was permitted to show by a previous execution in the same case, that the de- fendant had satisfied the judgment.^ And where, by law, tlie death of a defendant, and a decree by the probate court of the insolvency of his estate, had the effect of dissolving an attach- ment levied on his property, it was held, that the lien acquired by a garnishment was thereby likewise destroyed, and that as the judgment which might be obtained against the defendant's estate could not be coerced by execution, so none could issue on a judgment against the garnishee ; and therefore no judgment could be rendered against him.^ § 459 a. The dissolution of the attachment operates a dis- charge of the garnishee, though the suit as a personal action be allowed by law to proceed.^ § 460. As the whole object of garnishment is to reach effects or credits in the garnishee's hands, so as to subject them to the paj'ment of such judgment as the plaintiff may recover against the defendant, it results necessarily that there can be no judg- ment against the garnishee, until judgment against the defendant shall have been recovered.* The judgment against the defend- ant must be a lawful and valid one: if it be void, the judgment against the garnishee is also void.^ And it must be a final one. 1 Tliompson v. "Wallace, 3 Alabama, Eose v. Whaley, 14 Louisiana Annual, 132; Price v. Ilig^^ins, 1 Littell, 274; 374; Collins v. Friend, 21 Ibid. 7 ; Pob- Hammett v. Morris, 55 Georgia, G44. erts v. Barry, 42 Mississippi, 2G0 ; Met- 2 McEacliin r. IJeid, 40 Alabama, 410. calfe v. Steele, Ibid. 511 ; Kellogg v. Free- 8 Ante, § 411 ; INIitcliell v. Watson, 9 man, 50 Ibid. 127; Frwin v. Ileatli, Ibid. Florida, IGO. 795; Washburn v. N. Y. & V. M. Co., 41 * Gaines i\ Beirne, 3 Alabama, 114; Vermont, 50; Withers v. Fuller, 30 Grat- Lcigh V. Smith, 5 Ibid. 583; Lowry v. tan, 547 ; Eailroad v. Todd, 11 Ileiskell, Clements, 9 Ibid. 422 ; Bostwick v. Beach, 549 ; Sun Mut. Ins. Co. v. Sceligson, 59 18 Ibid. 80 ; Case v. Moore, 21 Ibid. 758 ; Te.xas, 3. Caldwell V. Townsend, 6 Martin, n. 8. » Post, § COO. Railroad v. Todd, 11 307; Proseus I'. Mason, 12 Louisiana, 16; Heiskell, 540; Woodfolk v, Whitworth, Housemans v. Heilbron, 23 Georgia, 180; 5 Coldwell, 501. [398] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. §461 If appealed from by the defendant, there can be no judgment against the garnishee while the appeal is pending ; ^ and if the judgment against the defendant be reversed, that against the gar- nishee must fall with it, and be likewise reversed.^ § 460 a. In some States authority is given to a party claiming to own the debt in respect of which a garnishee is summoned, to intervene in the attachment suit, and assert his ownership of the debt, so as to prevent its subjection to the operation of the gar- nishment. In such case, the right of such intervention exists only so long as the attaching plaintiff seeks to charge the gar- nishee in respect of that debt. If the plaintiff abandons all right to charge the garnishee, the only judgment that the court can render is that the latter be discharged ; it has no power, in that action, to settle the right of the intervening claimant to the debt.3 § 461. In order to a recovery against a garnishee, it must be sTioivn affirmativehj^ either by his answer or by evidence aliunde^ that he has property of the defendant in his possession, of a description which will authorize his being charged, or that he is indebted to the defendant. The law will not presume him liable, nor will he be required to show facts entitling him to be dis- charged, until at least a primd facie case is made out against him. On the contrary, the rule is the other way, that he will be entitled to be discharged, unless enough appear to render him liable. In this respect he stands precisely in the position he Tvould occupy if the defendant had sued him. A dictum of Parsons, C. J., in 1807, very proper as applied to the case be- fore him, but wholly erroneous as a general principle, — that " the trustees must be holden, unless sufficient matter appears in their answers to discharge them,""^ created and kept alive in ^Massachusetts, for many years, a misconception of the true posi- tion of a garnishee, and of the principles upon which he should be held liable. Afterwards, however, the Supreme Court of that State, in an elaborate opinion, traced the rise and progress of that 1 Emanuel v. Smith, 38 Georgia, 602. » Peck v. Stratton, 118 ^^lass. 406. 2 Rowiett V. Lane, 4o Texas, 274; * Webster u. Gage, 2 Mass. 503. Railroad v. Todd, 11 Heiskell, 549. [399] § 463 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. misconception, and finally settled the rule that the garnishee's liability should be affirmatively shown.i § 462. It is an invariable rule, that under no circumstances shall a garnishee, by the operation of the proceedings against him, be placed in any worse condition than he would be in, if the defendant's claim against him were enforced by the defendant himself. This is necessary, in order to protect the garnishee's rights, as between him and the defendant, and to enable the gar- nishee to defend against a suit which the defendant might bring against him on the same liability for which he may have been held as garnishee. § 463. As to the general basis of a garnishee's liability, it will be found, on examination, that whatever else may, under partic- ular statutes, authorize his being charged, there are two compre- hensive grounds, common to every attachment system, viz., 1. His possession, when garnished, of personal property of the defend- ant, capable of being seized and sold on execution ; and, 2. His liability, ex contractu, to the defendant, whereby the latter has, at the time of the garnishment, a cause of action, present or future, against him. In some States he may be charged in re- spect of real estate of the defendant in his hands ; and in some, on account of choses hi action; but aside from such special pro- visions, the language used in defining his liability, though varied, and often cumulative, will, on examination, be found to resolve itself, in each case, into those two general grounds ; which may be considered as fully embraced in any system which provides no more than that one having ''goods, effects, or credits''' of the de- fendant in his possession may be chaiged as his garnishee. The addition of the word "money," or "chattels," or "property," or " rights," which is frequently found, or that all of them, is not conceived to enlarge, in legal construction, the basis afforded by the comprehensive terms, "goods, effects, or credits." Hence the general applicability of the decisions in Massachusetts and 1 Porter v. Stevens, Cushinj?, 5?,0. Pritchard, 36 Ibid. 135; Lane v. Felt, See Lnmerson v. Ilumnan, 1 Diitulier, 7 Gray, 401 ; Driscoll r. Iloyt, 11 Ibid. G25; Williams v. Honsel, 2 Iowa, 154; 404; Ricbards r. Stepbenson, 99 Mass. Farwell v. Howard, 26 Ibid. 381 ; Hunt 311; Caldwell v. Coates, 78 Penn. State, r. Coon, 9 Indiana, 5;;7 ; Keagan r. Pacific 312. Kailroad, 21 Missouri, 30; Karnes v, [400] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 464 Maine, Avhere, under statutes using those words, it has been uni- formly held, that, to charge a garnishee, the defendant must either have a cause of action against him, or the garnishee must have in his possession personal property belonging to the defend- ant, capable of being seized and sold on execution.^ And the same rule prevails in New Hampshire and Vermont, where " any person having in his possession money, goods, chattels, rights, or credits " of the defendant, may be charged as garnishee.^ And so in Michigan.^ And where this possession exists, the possessor cannot escape the operation of the garnishment on the ground that the property for which it is sought to charge him might have been attached by levy.^ § 464. The rule, as just stated, is qualified, in the case before referred to, of the garnishee's possession of effects of the defend- ant under a fraudulent transfer,^ and is also subject to excep- tions. For instance, where the garnishee has in his possession property, which, when he is summoned, could not be seized under attachment or execution, because not removable without material injury to it, — as hides in the process of tanning, — he may nevertheless be charged as garnishee in respect of such property, because he can hold it until it be in a condition to be delivered on execution.^ So, an attorney at law, who has col- lected money for his client, may be held as garnishee of the client, though the latter have made no demand of payment ; without which he could maintain no action against the attorney.'^ 1 Maine F. & M. Ins. Co. v. Weeks, 7 v. Hirst, 2 Penn. State, 346 ; Mann v. Mass. 438 ; Wliite v. Jenkins, IG Ibid. 62 ; Buford, 3 Alabama, 312. In Corey v. Brigden v. Gill, Ibid. 522 ; Rundlet v. Powers, 18 Vermont, 588, Williams, Jordan, 3 Maine, 47. C. J., said : " It is objected that no action 2 Haven v. Wentworth, 2 New Hamp. could have been maintained by the debtor 93; Adams v. Barrett, Ibid. 374; Piper against the trustee, without a previous V. Piper, Ibid. 4-39 ; Greenleaf v. Perrin, demand, and that because no such de- 8 Ibid. 273; Paul v. Paul, 10 Ibid. 117; mand was found in the case, the trustee Getchell V. Chase, 37 Ibid. 106 ; Hutchins should not have been held chargeable. V. Hawley, 9 Vermont, 295 ; Hoyt v. It is not necessary, to constitute this Swift, 13 Ibid. 129. relation of debtor and trustee, that a 3 Wilson V. Bartholomew, 45 Michi- right of action should actually e.xist and gan, 41 ; Anderson v. Odell, 51 Ibid. 492. be perfected in the debtor, at the com- * Brown v. Davis, 18 Vermont, 211. mencement of the trustee process. It is 6 Ante, § 458. sufficient, if property is deposited with 6 Clark u. Brown, 14 Mass. 271. the trustee, or that he is indebted to the ■^ Staples V. Staples, 4 Maine, 532; principal debtor, though something fur- Woodbridge u. Morse, 5 New Hamp. 519; ther may be requisite, to constitute a Thayer v. Sherman, 12 Mass. 441 ; Riley right of action therefor." In Quigg v. 26 [401] § 465 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. And in Maryland, though it is there held that a married woman cannot maintain a suit at law against her husband,^ yet the hus- band of a woman carrying on business in her own name as a sole trader^ was charged as her garnishee, on an indebtedness to her for monej^ she had earned in her business, and which had come into his hands.^ § 465. Still the rule as stated may be considered generally applicable ; and it follows thence, that, without express statutory warrant, one cannot be made liable as garnishee in respect of real estate of the defendant in his possession, and it has been so held in several instances. In Maine,''^ Massachusetts,* and Connect- icut,'^ where the possession of " goods, effects, or credits " of the defendant, by the garnishee, is the criterion of the garnishee's liability, real estate is not considered to come within the meaning of those terms. In New Hampshire ^ and Vermont," under stat- utes basing the liability of the garnishee on his possession of *' money, goods, chattels, rights, or credits," the same doctrine is held. Therefore, where A., when about to abscond, fraudulently executed a note to B., and a mortgage to secure the payment of the note, and B. was subsequently garnished, the court said : " The lands mortgaged are not effects within the statute, because the mortgage being fraudulent as to creditors, the lands mort> gaged may be taken in execution, either by the plaintiff or by any other creditor. And it has long been settled that where lands are fraudulently conveyed by a debtor, the grantee is not thereby a trustee for creditors, because, as to them, the convey- Kittredge, 18 New Hamp. 137, the court to costs, lie recovers costs, and these are said : " Actions cannot be maintained by regarded as an indemnity." the party entitled, against attorneys, ^ Barton v. Barton, 32 iMaryland, 224. sheriffs, agents, &c., wlio have moneys in - Odend'iial v. Devlin, 4b Maryland, their hands, collected, until a demand 4oO. lias been made. So, bailees are not an- ^ Moor v. Towle, 38 Maine, l.>3; Sted- swcrable, in many cases, until tliere has man v. Vickery, 42 Ibid. 102; riunimer been a demand. So, administrators of v. Rundlett, Ibid. 365. insolvent estates cannot be charged until ^ How v. Field, 5 Mass. 890 ; Dickin- demand, after a dividend has been de- son v. Strong, 4 Pick. 57 ; Ripley v. Sev- clared, nor administrators generally, for erance, G Ibid. 474 ; Gore v. Clisby, 8 the share of an heir. But they may !« Ibid. 555 ; Bissell v. Strong, 9 Ibid. 562. charged as trustees, although there has See Seymour v. Kramer, 5 Iowa, 285. been no demand. Tlie reason is, that * Kisley r. Welles, 5 Conn. 431. the process of foreign attacliment is not " Wright i-'. Bosworth, 7 New Ilamp. regarded as an adverse suit, as against 590. tlie trustee. Instead of being subjected • Baxter v. Currier, 13 A''erniont, G15. [402] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 466 ance is void, and the lands are liable to their executions, with- out the assent or exposure of the grantee. If he was holden a trustee to the value of the lands, after having paid one creditor that value, another creditor might by his execution take the lands from him, and thus he would in effect be charged with the value without any consideration." ^ So, where an insolvent debtor had assigned personal and real property for the payment of certain debts, and the assignee was garnished, he was held not liable in respect of the real estate ; the court basing its judg- ment on the following grounds : " There are great difficulties in charging the assignee, b}^ the trustee process, on account of the real estate so conveyed. Indeed, the provisions of the statute cannot be executed upon it, according to the intention of the legislature, nor can real property thus situated be brought within any technical definition of the words of the statute which desig- nate the objects of the process. Land is neither goods, effects, nor credits ; neither is the assignee indebted to the assignor on account of it. If this difficulty could be overcome by giving a broader signification to the term effects than is usually assigned to it, there are other difficulties which are quite insuperable. The sixth section of the statute provides that the trustee, when judgment is rendered against the principal, and against his goods and effects in the hands of the trustee, niaj' discharge himself by exposing the goods and effects of the principal to the officer who has the execution ; and the officer may then seize and sell them as the property of the principal. This is wholly inapplicable to land ; which cannot be considered as the principal's while the legal title is in the assignee. And then the form of the execution provided in the statute manifestly shows that real estate was not 1 How V. Field, 5 Jfass. 390. In credits, although the principal defendant Hunter v. Case, 20 Vermont, 105, it was could not maintain an action therefor attempted to subject a garnishee to lia- against him. Bexxett, J., in delivering bility on account of real estate held by the opinion of the court, said : " There him under a conveyance which was void can be no pretence that real estate can as to creditors. Tiie statutory provision be brought within the statute, unless, bearing on the case was, that, if tlie per- indeed, within tlie term (-fftcts. Certainly son summoned as trustee should have in it is not rjoods or credits. It is not within his possession any goods, effects, or credits the popular meaning of the term e/Tfcts. of the principal defendant, which he That word, as ordinariij' used, is under- holds by a conveyance, or title, tliat is stood to mean (joods, movables, jiersonal void as to tiie creditors of the principal estate ; and I am not aware that tlie word defendant, he may be adjudged trustee effects has ever been defined by any legal on account of such goods, eflTects, or writer as including real estate." [403] § 465 a GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. in tlie contemplation of the legislature, as a subject of the pro- cess. It requires the sheriff, for want of goods, chattels, or lands of the principal in his own hands and possession, or of goods^ effects, and credits in the hands of the trustees, to be by them discovered and exposed, to take the body of the principal, etc. Now land conveyed to the assignee by a bond fide deed cannot be considered as in the hands or j)ossession of the principal, nor can it be considered as goods, effects, or credits in the hands of the trustee." ^ The reasons here given, though referring princi- pally to the statute of Massachusetts, yet have a general appli- cability ; as in most, if not all, the States, a garnishee may discharge himself from liability in respect of property of the defendant in his hands, by delivering it to the officer. Wherever this is the case, it would seem to follow that a garnishee should not be charged in respect of property which he cannot so deliver, and, therefore, not in respect of real estate. But, aside from statutory provisions, it is sufficient that, if the conveyance to the garnishee be bond fide, he has no property of the defendant in his possession, and if it be fraudulent, the property is subject to the execution against the defendant, without any disclosure by the garnishee ; and that the garnishee if made liable by one creditor for the value of the land, may afterwards lose the land by a sale under another creditor's execution. But though a garnishee may not be charged in respect of real estate of the defendant in his possession, we shall hereafter see that he may be, on account of liabilities growing out of the pos- session of such property .2 § 465 a. The whole scope of the doctrines stated in the pre- ceding sections of this chapter would seem to indicate clearly that garnishment is a proceeding against third persons; that is, persons who do not stand in such relation to the defendant, as that their garnishment is, in fact, but the garnishment of the defendant himself. And this, doubtless, is the object of the proceeding under the custom of London ; where, " if the plaintiff will sur- mise that another person within the city is a debtor to the de- fendant in any sum, he shall have garnishment against him." ^ It is, tlierefore, quite inadmissible, in an action against several 1 Gore V. Clisby, 8 Pick. 556; Chap- « Pos<, § 648. man v. Williams, 13 Gray, 410. « Ante, § 1. [404] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 465 a defendants, to summon one of them as garnishee of the others.^ But attempts have been made to garnish individuals, where to do so was in reality to garnish the defendant ; as, for instance, a toll-gate keeper of a turnpike road, and a ticket agent of a rail- road ; and the question has arisen, whether in such cases the proceeding can be maintained. Upon principle, it seems that it cannot. They are not third persons, so far as their relations to the defendant are concerned ; but are, in effect, the defendant himself. Their possession of the defendant's money is his pos- session. He can have no right of action against them until a demand made upon them for the money, and their failure to pay it. They occupy the same position toward him as a cashier does toward a bank, a cash clerk toward a merchant, a treasurer toward a municipal corporation ; simply custodians of the de- fendant's money, under his immediate supervision and control. Still, in the case of a toll-gate keeper, it was held in Alabama, that he could be charged as garnishee of the company for which he collected tolls ; '■^ and in New Hampshire, that a station agent of a railroad could be so charged in respect of monej's collected by him from the sale of passenger tickets and for freight charges/^ The same question came up in Pennsylvania, in the case of a ticket agent of a railroad company, employed at the companv's office to sell tickets to passengers ; and the court held, that he could not be garnislied. " The purpose of an attachment," said the court, " is to reach effects of a defendant in the hands of third persons. Here, the defendant is a corporation, — a railroad company. Are its ticket agents to be treated as third persons, so far as regards money received by them on the sale of tickets to passengers ? We think not. We suppose that the case speaks of the ordinary ticket agents employed at the offices of the com- pany ; and of these we speak. These are the very hands of the company ; it cannot do its business without them ; and if an 1 Bailey v. Lacey, 27 Louisiana An- 3 Littleton Nat. Bk. r. P. & 0. R. R., nual, 39; Ricliardson y. Lacey, Ibid. 62. 58 New Hamp. 104. This decision was 2 Central Plank-Road Co. r. Sammons, rendered in March, 1877 ; and in the fol- 27 Alabama, 380. Subsequently, in that lowing July the New Hampshire Legisla- State, it was held, that a county treasurer ture passed an act prohibiting the gar- could not be charged as garnishee of the nishment of any clerk, cashier, or otlier county; but this decision rested mainly employee of the defendant, on account of on peculiar statutory provisions, not gen- funds received and held by him in the or- erally found in other States. Edmon- dinary course of his employment. son 1-. DeKalb County, 51 Alabama, 103. [405] § 465 I GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. attachment is to be regarded as arresting money received after its service, then it would always occasion the dismissal of such agents, in order to prevent such a result." ^ In like cases, like views were held in Maine.^ In Tennessee, the treasurer of a railroad company was garnished, under a statute which declared that " all propert}', debts, and effects of the defendant in the pos- session of the garnishee or under his control, shall be liable to satisfy the plaintiff's judgment." He answered that there were moneys in the treasury of the company, when he was summoned as garnishee, but that he is but the servant of the company, under the description of treasurer ; and as such he has no author- ity or power to control or manage the funds of the company, except under the immediate direction of said companj^ ; that the assets and effects of said company are, in fact, in the actual pos- session thereof, and he is the mere receivincr and disbursino- asrent thereof. And in this sense alone, he has possession, if possession it can be called, of the funds of the company. The court held, that he had no such possession of those funds, as authorized his being charged as garnishee of the compan3^^ And in Kentucky, it was decided that the president of a railroad company could not be charged as garnishee of the company in respect of funds thereof in its treasury.^ § 465 h. To the doctrine stated in the next preceding section an exception was made in Alabama under a judgment against A. individually. A. was garnished as executor of an estate, on the supposition that he had in his hands moneys due from himself as executor to himself individually ; the statute of that State authorizing the garnishment of executors or administrators for a debt due by the testator or intestate to the defendant. It was held, that A. in his representative capacity might be charged as his own garnishee, but that the judgment should be satisfied out of the assets of the estate in his hands.^ 1 Fowler v. Pittsburg, F. W. & C. R. Ibid. 395; First Nat. Bank v. Davenport R. Co., 35 Penn. State, 22. & St. P. R. R. Co., 45 Iowa, 120. 2 Pettingill v. Androsooggin R. R. Co , ^ IMcGraw r. Mempliis & 0. R. R. Co., 51 Maine, 370 ; Sprague r. Steam Nav. 5 Coldwuil, 434. See Muetli v. Schardin, Co., 52 Ibid. 502 ; Bowker v. Hill, 60 4 Missouri Appeal, 403. Ibid. 172. Sed co„lni, Ballston Spa Bank « WiMor v. Sliea, 13 Bush, 128. V. Marine Bank, 18 Wisconsin, 490; ^ Dudley i; Falkner, 49 Alabama, 148. Everdell v. Sheboygan, &c;. R. R. Co., 41 [406] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 467 § 466. The further consideration of this subject will naturally lead to its arrangement in two general divisions: 1. The liability of a garnishee in respect of property of the defendant in his possession ; and, 2. His liability as a debtor of the defendant. § 467. On the first point it may be remarked, that it will often happen that a person garnished may have personal property of the defendant in his possession, and yet not be liable as gar- nishee. Various considerations determine the question of liability, not only as to the nature of the property, but as to the circum- stances under which it is held. The property may not be such as is contemplated by the rule above declared, or by the par- ticular statute under which the individual is garnished ; or his possession of it may not be such as to make him liable ; or the capacity in which he holds it may exempt him from liability ; or there may be contracts in reference to it which forbid his being charged. Many such questions have arisen, eliciting acute discussion and learned adjudication. We propose, therefore, after first considering who may be subjected to garnishment, to treat of the liability of a garnishee, in respect of personal property of the defendant in his hands, under the following heads : — I. What personal property of the defendant in the garnishee's possession will make the garnishee liable. II. The character of the possession of personal property by a garnishee, which will be sufficient to charge him. III. The garnishee's liability, as affected by the capacity in which he holds the defendant's property. IV. The garnishee's liability, as affected by previous contracts touching the defendant's property in his hands. V. The garnishee's liability, as affected by a previous assign- ment of the defendant's property in his hands, or by its being subject to a lien, mortgage, or pledge. [4071 470 WHO MAY BE GARNISHED. [CHAP. XIX. CHAPTER XIX. WHO IVIAY BE GARNISHED. — CORPORATIONS. — NON-RESIDENTS. § 468. As a general proposition, irrespective of the ulterior question of liability, all persons are subject to garnishment. But there have arisen questions of importance connected with the character and status of the garnishee, which it is proper to con- sider, before proceeding to the more extended field of inquiry in regard to his liability. Those questions are connected : 1. With the garnishment of corporations ; and, 2. With that of persons residing out of the State in which the attachment is obtained. The consideration of these points will form the subject of the present chapter. § 469. As to corporations, provision is usually made by statute for their garnishment. So far as such provisions are concerned, they need not be here discussed. But where such do not exist, can a corporation be summoned as garnishee, under general enactments jmmd facie applicable to natural persons only? This subject was fairly presented before the Supreme Court of Connecticut,^ and that of lowa,^ the Court of appeals of Mary- land,3 and that of Virginia,^ by all of which it was held — as doubtless would be held elsewhere — that, though not mentioned in the statute as the subject of garnishment, a corporation is liable thereto, in the same manner as a natural person. § 470. Whatever may be the statutory mode of serving an attachment on a corporation as a garnishee, a service in a mode authorized and requested by the president and directors of the 1 Knox V. Protection Ins. Co., 9 Conn. ^ Boyd v. Chesapeake & Ohio Canal 430. Co., 17 Maryland, 1!)5. 2 Wales V. Muscatine, 4 Iowa, 302 ; * Baltimore & Ohio R. R. Co. v. Galla- Tavlor v. Burlington & Mo. R. R. Co., 5 hue, 12 Grattan, 055. Ibid. 114. [408] CHAP. XIX.] WHO MAY BE GARNISHED. § 470 corporation has been held binding on it, where those officers requested that notices of garnishment should be delivered to one of the clerks of the corporation.^ But care should be taken that there be in reality a service on the corporation. The notice of garnishment may be served on its officers, but not be a service on it. Thus, where such notice was served on the Mayor, Recorder, and Treasurer of a city, informing them and each of them that they " were attached and held as garnishees of the defendant, -and as persons holding property of said defendant ; " it was decided to be no service on the corporation.^ So, where the writ of garnishment commanded the officer to " summon the said J. S., agent and attorney for the S. M. I. Co.," and it was served by copy upon J. S., it was held to be no service on the Company, and a judgment rendered against the Company under it was reversed.3 So, where the law authorized the garnishment of a corporation by serving the process " on the president, cashier, secretary, treasurer, general or special agent, superintendent, or other principal officer," a return of service on " J. D. W., agent of the within named defendant," was held insufficient ; the court saying : " The terms ' general or special agent' are ver}^ indefinite, but employed as they are here in association with terms desig- nating the principal officers of the corporation, they evidently intend agents who either generally or in respect to some par- ticular department of the corporate business have a controlling authority, either general or special." ^ So, where the summons of garnishment was served on the agent of a foreign corporation, and required him to answer what he owed the defendant.^ So, where notice of garnishment was served on A. and B., as agents of a foreign insurance company, it was considered insufficient to authorize judgment against the company.^ And where the statute authorizes garnishment by leaving a copy of the writ with the person owing debts to, or having property of, the defendant in his possession, " or with his agent ; " it was held, that the agent must be a managing agent ; and therefore that service upon the 1 Davidson v. Donovan, 4 Cranch C. C. - Claflin v. Iowa Citj% 12 Iowa, 284 ; 578. However correct this view might be Greer v. Rowlej', 1 Pittsburgh, 1. so far as the garnishee is concerned, it ^ Sun Mutual Ins. Co. v. Seeligson, 59 could hardly be reUed on to give priority Texas, 3. of right over subsequent garnishments, ^ Lake Shore & M. S. R. Co. v. Hunt, reguhirly served, wliere the fund in the 39 Michigan, 469. garnisliee's hands was insufficient to ^ Varnell v. Speer, 55 Georgia, 132. satisfy all the attachments. ^ Daniels v. Meinhard, 53 Georgia, 359. [409] § 472 WHO MAY BE GARNISHED. [CHAP. XIX. teller of a bank, whose sole duty was to receive and pay out nionej'S that came into and went out of the bank, was not a gar- nishment of the bank.i And where the hiw required service on a garnishee to be personal, but did not prescribe the mode of gar- nishment of a corporation, it was held, that service upon an agent of the corporation was not sufficient, but that it should have been made, as at common law, upon the president, or other officer fulfilling the duties of president ; ^ and the temporary absence of the president will not warrant service on a subordi- nate officer or agent ; and no judgment can be taken against the corporation for failing to answer, where the return shows that the president was not served.^ In Connecticut, it was decided that a corporation could not be charged as garnishee, where no legal service of process had been made upon it, though its secretary appeared and answered, and made no objection to the sufficiency of the service ; * and in Maryland, that ijn admission of service by the attorney of a corporation could not give the court jurisdiction of the corporation as garnishee.^ § 471. The rules governing the liability of a corporation as a garnishee, do not differ from those applicable to the case of an individual. The corporation must either have personal property of the defendant in its possession, capable of being seized and sold under execution, or be indebted to him. Neither of these condi- tions is fLdfilled by the mere fact of the defendant being a stock- holder in the corporation ; and the corporation cannot be charged as his garnishee on that account.*^ Nor can a corporation be charged as garnishee in respect of certificates of membership in it, held by an attachment defendant.^ § 472. Different views are entertained as to the manner in which a corporation shall answer as garnishee. In Virginia and South Carolina, it must answer through its chief officer and under its 1 Kennedy v. II. L. & S. Society, 38 » Nortliern C. R. Co. v. Rider, 45 Mary- California, 151. land, 24. 2 Clark I'. Cliapnian, 45 Georgia, 480; 6 planters & Mercliants' Bank v. Lambretli v. Clarke, 10 Ileiskell, 32. Leavens, 4 Alabama, 753 ; Ross v. Ross, 3 Steiner r. Central Railroad, GO Geor- 25 Georgia, 207 ; Mooar v. Walker, 4(3 gia^ 552. Iowa, 104. Sed contra, Cliesapeakc & V Raymond v. Rockland Co., 40 Conn. O. R. R. Co. v. Paine, 29 Grattan, 502. 401. ' Netter v. Chicago Board of Trade, 12 Bradwell, 007. [410] CHAP. XIX.] WHO :srAY BE GAENISHED. § 474 common seal.^ In Alabama, the same rule exists, with the fur- ther requirement, that, if the seal be used by another than the chief officer, it should appear to have been by the express author- ity of the directors. It was therefore held, that an answer of a corporation put in by its cashier, or the individual answer under oath of either a president or cashier, is not sufficient.- In Illinois, on the contrary, where the statute required an an- swer to be sworn to in all cases, an answer of a corporation, signed by its secretary and under its corporate seal, was held sufficient ; and as the corporation could not swear, the oath of a proper officer, or of an agent of the company, was considered a substan- tial compliance with the statute.^ In Maine, the answer can only be made by an agent or attor- ney of the corporation. It need not be a general agent, but one specially authorized may act in that capacity, whether he be a member of the corporation or not.^ § 473. Concerning the residence of a person, as affecting his liability to garnishment, it is well settled, that under the custom of London one cannot be charged as garnishee, unless he reside within the jurisdiction of the Lord Mayor's court.^ § 474. In this country, the question has been repeatedly pre- sented, and the uniform tenor of the adjudications establishes the doctrine, that whether the defendant reside or not in the State in which the attachment is obtained, a non-resident cannot be sub- jected to garnishment there, unless, when garnished, he have in that State property of the defendant in his hands, or be bound to pay the defendant money, or to deliver to him goods, at some par- ticular place in that State. As in many other questions in the law of attachment, Massa- chusetts was the first to pass upon this point, in a case where both defendant and garnishee were non-residents. The Supreme Court 1 Callahan v. Hallowell, 2 Bay, 8 ; * Head v. Merrill, .34 Maine, 586. Baltimore & O. R. R. Co. v. Gallahue, 12 ^ 1 Saunders's R. 67, Note a; Taram Grattan, 655. v. Williams, 2 Cliitty, 438 ; 3 Douglass, 2 Branch Bank v Foe, 1 Alabama, 281 ; Crosby v. Hetherington, 4 Manning 396 ; Planters & Merchants' Bank v. & Granger, QoS ; Day v. Paupierre, 7 Leavens, 4 Ibid. 753. Dowling & Lowndes, 12 ; 13 Adoiphus 3 Oliver v. C. & A. R. R. Co., 17 Illinois, &, Ellis, n. s, 802. 587 ; Chicago, R. I. & P. R. Co. v. Mason, 11 Bradwell, 525. [411] § 475 WHO MAT BE GARNISHED. [CHAP. XIX. there said : " The summoning of a trustee is like a process in rem. A chose in action is thereby arrested and made to answer the debt of the principal. The person entitled by the contract of the sup- posed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered for this purpose as local, and as remaining at the residence of the debtor or person intrusted for the principal, and his rights iiL this respect are not to be considered as following the debtor to any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides. " ^. When the point arose again, the defendant was a resident, and the garnishee a non-resident, and the court maintained its pre- vious position.^ The same ground has been taken in Maine, New Hampshire, Vermont, Rhode Island, Connecticut, New York, and the District of Columbia.^ § 475. This doctrine, however, as previously intimated, does not apply, where the garnishee has in his hands, in the State in which he is summoned, property of the defendant, or has con- tracted to pay money or deliver goods to the defendant at some particular })lace in that State. In regard to this condition of things, the Superior Court of New Hampshire said : " The prop- erty was attached in the trustee's hands, while in his possession in this State. If he had not the property with him, but had left it at his residence, it could not be said that it was attached here ; but having it with him, we see no reason why it might not be attached in this way, as well as if it had been visible personal property of the defendant's and taken by the officer. If the trustee had brought into this State the goods and chattels of the defendant, and had himself no special property in them which might give him the power to remove tliem from the State, they could, no doubt, have been attached and held on a writ against 1 Tingley v. Batem.in, 10 Mass. 343 ; Vincent, 6 Vermont, C14 ; Cronin v. Fos- Nye V. Liscomb, 21 Pick. 2G3. See Wheat ter, l.> Rhode Ishnifl, 19G ; Green v. Far V. P. C & F. 1). R. R-, 4 Kansas, 370. nicrs & Citizens' Bank, 25 Conn. 4o2 ; 2 Ray V. Underwood, 3 Pick. 302 ; Ilart Bates v. New Orleans, &c., R. R. Co., 4 V. Anthony, 15 Ibid. 445. Abbott Pract. 72 ; 'Willct v. Equitable 8 Lovejoy v. Albree, 33 Maine, 414; Ins. Co., 10 Ibid. 103; Miller i-. Ilooe, Jones V. Winchester, G New Ilamp. 407 ; 2 Cranch, C. C. G22. Spd conira, Mor- Lawrence i'. Smitli, 45 Ibid. 533 ; Sawyer gau v. Neville, 74 Penn. State, 52. V Thonip^^on, 4 Foster, 510; Baxter v. [412] CHAP. XIX.] WHO MAY BE GARNISHED. § 477 the defendant ; and it appears to us that no well-founded dis- tinction can be pointed out between such a case and one where the trustee has about his person, at the time the writ is served upon him, the money and notes of the defendant. "^ § 476. When one is summoned as garnishee in a State of which he is not a resident, it is necessary, for his own protection, that he should answer to the proceeding and avail himself of what- ever defence he has against liability ; or he will be liable to a judgment by default against him, if the law under which he was summoned authorize that course of proceeding ; for, by the ser- vice of the process, the court acquires jurisdiction of his person, and the question whether it has, or can take, jurisdiction of the effects in his hands, can only be raised by himself upon his answer. § 477. The exemption from garnishment on account of non- residence is not to be pushed beyond the reason of the rule, which rests upon the,idea that the property or debt sought to be reached is without the jurisdiction of the court, and, for that reason, incapable of being subjected to its process. Therefore, if several joint debtors be garnished, part of whom are residents and part non-residents, the jurisdiction will extend to all, in vir- tue of the residence of those within the State. This was decided in Vermont, under a statute which provided " that no person shall be summoned as trustee, unless at the time of the service of the writ he resides in this State. " Four persons, members of a firm existing in the State, were summoned as garnishees, two of whom were residents of the State of New York. It was claimed that none of them were chargeable, because the two non-residents being specially excepted from the act, all the mem- bers of the firm were likewise excepted, as none were liable to be prosecuted on the joint claim unless all were, or could be made, legal parties to the record. But the court held, that the statute applied only to cases where all the garnishees resided in another State, and not to a case where some of them were residents of Vermont, where the partnership was formed and had its place of business ; and that, if the effects in their hands are considered 1 Young V. Ross, 11 Foster, 201. ^ Lawrence v. Smith, 45 New Hamp. 533. [413] § 478 WHO MAY BE GARNISHED. [CHAP. XIX. local, and as remaining at the residence of the garnishee, they must be regarded as remaining where the partnership was formed, its business transacted, and two of its members resided.^ § 478. The principles which would exempt non-residents from garnishment produce the same result in the case of a foreign corporation. This was so determined in Massachusetts, though the officers of the corporation resided, and its books and records were kept, in that State, and though the statute there declares that " all corporations may be summoned as trustees. " The very generality of the terms is considered to require some qualification " It cannot, " said the court, " be construed literally, all corpora- tions, in whatever part of the world established and transacting business. The answer is to be found in the statutes in pari materia then existing. The statute in question was only an ex- tension of an existing system ; it was intended, we tliink, to put corporations on the same ground as individuals. And it is well settled that an individual, an inhabitant of another State, is not chargeable by the trustee process, although found in this common- wealth, and here served with process. In the case of corporations which have no local liabitation, the principle is this : if established in this commonwealth, by the laws tliereof, they are inhabitants of this commonwealth, within the meaning of the law; but if established only by the laws of another State, they are foreign corporations, and cannot be charged by the trustee process." ^ The same views obtain in New Hampshire.^ And in Maryland, where the statute authorized suits by non-residents against foreign corporations exercising franchises there, " when the cause of action has arisen, or the subject of the action shall be situated in this State," it was held, that a British insurance company, doing busi- ness there through an agent, could not be charged as garnishee on account of a loss under a policy issued to non-residents, by an agent in Chicago, Illinois, upon property in that city ; because the holders of the policy could not sue the company thereon in Maryland.* And in New York, where an agent upon whom the 1 Pock V. Bamum, 24 Vermont, 75. 3 Smith v. B. C & M. Railroad, 33 New 2 Danfortli v. reiiiiy, 3 Metcalf, 5G4 ; Ilanip. 337. Gold V. IIousatoiiicKiiilroad Co., 1 Gray, * Mycr v. Liverpool L. & G. Ins. Co., 424 ; Bradford v. Mills, 5 Rhode Island, 40 Maryland, 595. ^:)o\ Larldn v. Wilson, lOG Mass. 120. [414] CHAP. XIX.] WHO MAY BE GARNISHED. § -178 process is served is a non-resident, and when served, is only casually in the State, no attachment of the debt is effected.^ But in Pennsylvania, a foreign railroad corporation was held as garnishee, where it had accepted from that State the privilege of extending its road through one of the counties thereof, coupled with a provision in the act granting the privilege, which required the company " to keep at least one manager, toll-gatherer, or other officer, a resident in the county ; " on whom service of pro- cess " in all suits or actions which may be brought against said company," was declared to be "as good and available in court as if made on the president thereof." 2 And in Ohio it was held, that a foreign railroad company was subject to garnishment, where it was operating a railroad in that State with the assent of the legislature ; and that for all purposes of proceedings in attach- ment and garnishment it was to be deemed a domestic corpora- tion.3 And in Missouri, under a statute which provided that " notice of garnishment shall be served on a corporation, in writ- ing, by delivering such notice, or a copy thereof, to the president, secretary, treasurer, cashier, or other chief or managing officer of such corporation," it was held, that a foreign insurance com- pany, having an agency in that State, might be garnished, by serving the notice upon the agent ; who, for that purpose, would be regarded as a " managing officer," within the meaning of the statute."* And in Wisconsin, under a statute providing that " a corporation may be summoned as garnishee by service of notice to appear and answer, upon the president, cashier, treasurer, secretary, or other agent or officer of the corporation upon whom a summons may by law be served in cases where an action is commenced against such corporation," it was held, that a foreign corporation was liable to garnishment by service of notice upon its agent.^ And in Illinois, where the statute declared that "foreign corporations, and the officers and agents thereof, doing business in this State, shall be subjected to all the liabilities, restrictions, and duties that are or may be imposed on corpora- 1 Willet V. Equitable Ins. Co., 10 Ab- ^ Railroad i-. Peoples, 31 Ohio State, bott Praot. 193. See Midland P. R. R. 537. Co. V. McDermid, 91 Illinois, 170. * McAllister v. Penn. Ins. Co., 28 iMis- 2 Jones V. New York & Erie R. R. Co., souri, 214. 1 Grant, 457 ; Fithian v. New York & = Brauser v. New England F. I. Co., Erie R. R. Co., 31 Penn. State, 114; Barr 21 Wisconsin, 506. See Selma R. & D. V. King, 90 Ibid. 485. R. R. Co. v. Tyson, 48 Georgia, 351. [415] § 479 "WHO MAY BE GARNISHED. [CHAP. XIX* tions of like character organized under the general laws of this State," it was held, that a Missouri corporation, having an agent in Illinois, could be summoned in the latter State, as garnishee of a citizen of Missouri, by service of the garnishment process on the agent ; there being also, a statute which authorized a domes- tic corporation to be " served with process by leaving a copy thereof," in the absence of the president, " with any clerk, sec- retary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent, or any agent of said company found in the county." ^ And in that State, a foreign insurance company, having an agency in that State, was charged as garnishee there, on account of a loss in Wisconsin ; the court holding that a corporation, under whatsoever law incorporated, is a resident, for all purposes of suit, wherever by authority of the local law it exercises its corporate powers and functions.^ § 479. Where, as is sometimes the case, a corporation is char- tered by two or more States, it is not in any of those States a foreign corporation, and may be subjected to garnishment in any of them, though its office and place of business be not in the State in which the garnishment takes place.^ 1 Hannibal & St. J. R. R. Co. v. Crane, lahue, 12 Grattan, 6-55 ; Smith v. B. C. & 102 Illinois, 219. See Mooney v. U. P. M. Railroad, 33 New Hamp. 837. See R. Co., 53 Iowa, 316. Sprague v. Hartford, P. & F. R. R. Co., 5 2 Roche V. R. I. Ins. Ass'n, 2 Bradwell, Rhode Island, 233 ; IMahany v. Kephart, 360. 15 West Virginia, 609. 8 Baltimore & Ohio R. R. Co. v. Gal- [416] CHAP. XX.] WHAT PROPEKTY WILL CHAKGE GARNISHEE. 480 CHAPTER XX. WHAT PERSONAL PROPERTY IN THE GARNISHEE'S HANDS WILL ]\IAKE HOI LIABLE. § 480. The rule that the personal property in the garnishee's hands in respect of which he may be charged, must be such as is capable of being seized and sold on execution,^ results from the consideration that he should be at liberty, if he wish, to discharge himself from pecuniary liability, by delivering the property into the custody of the tribunal before which he is summoned ; and therefore, that he should not be charged for that which, if so deliv- ered, could not be sold under execution. Therefore, where a garnishee admitted that, when summoned, he had in his posses- sion a horse of the defendant's, but showed that the horse was by law exempt from execution against the defendant, he was held not chargeable.^ This rule applies to the proceeds, in money, of exempted real estate sold under execution, under a statute authorizing such to be awarded to a debtor in lieu of the property ; ^ and also to money recovered by a debtor for the value of property exempt from execution which had been seized and sold.^ But if the owner of property so exempt sell the same, the debt due him therefor may be attached.^ And if property exempt from execution be destroyed by fire w^hile insured, the insurance company may be charged as garnishee of the owner for the amount due under the policy.^ And if money which before its payment to the defendant, could not be reached by gar- 1 Ante, § 4G3. cate or the stock to its execution. Christ- 2 Davenport v. Swan, 9 Humphreys, mas v. Biddle, 13 Penn. State, 223. See 186 ; Staniels v. Raymond, 4 Cushing, Deacon r. Oliver, 14 Howard Sup. Ct. 314 ; Fanning v. First Nat. Bank, 76 lUi- 610 ; Moore v. Gennett, 2 Tennessee nois, 53. Where one held a certificate Ch'y, 375. of shares of stock in a bank in another ^ Gery v. Ehrgood, 31 Penn. State, 329. State, in favor of the defendant, it was * Stebbins i'. Peeler, 29 Vermont, 289. held, that he could not be charged as ^ Scott v. Brigham, 27 Vermont, 561 ; garnisliee in respect thereof; because the Knabb v. Drake, 23 Penn. State, 489. court could not subject either the certifi- ^ Wooster v. Page, 54 New Hamp. 125. 27 [417] § 481 WHAT PROPERTY WILL CHARGE GARNISHEE. [CHAP. XX. nishment, by reason of its being exempted from attachment, be, after its payment, lent out by him, the borrower may be subjected to liability on account of it, as garnishee of the defendant. This was held, in reference to a soldier's bounty voted by a town ; which, before its payment to the soldier, could not be attached by the garnishment of the town ; ^ but after its payment, could be reached by the garnishment of a person to whom it was lent.^ The garnishee, in such cases, may object to such property being held by the attachnjent, though the defendant do not raise the question ;^ for if the former know of the exemption, and fail to bring it to the notice of the court, and thereby be charged as garnishee, the judgment will be no protection to him.'^ In some States laws exist exempting from attachment a certain amount of money due to a head of a family. In such case it is the duty of a defendant to furnish the garnishee with the infor- mation and means to prove the fact of exemption, or himself to prove it ; and it is the right and duty of the defendant, if judgment is erroneously given against the garnishee, to have it set aside, or to appeal from it ; and if he fail in these several respects, he is bound by the judgment against the garnishee, and cannot impeach it collaterally.^ § 481. It has been uniformly held, that one having in his possession promissory notes, or other cJioses in action, of the defendant's, cannot in respect thereof be charged as garnishee.^ 1 Brown v. Heath, 45 New Hamp. 108. drews v. Ludlow, 5 Ibid. 28 : Lupton v. 2 Manchester v. Burns, 45 New Hamp. Cutter, 8 Ibid. 298 ; Gore v. Clisby, Ibid. 482. 555; Guild v. Holbrook, 11 Ibid. 101; 8 Clark V. Averill, 31 Vermont, 512 ; Hopkins v. Ray, 1 Metcalf, 79 ; Meachara Winterfield v. Milwaukee & St. P. R. R. v. McCorbitt, 2 Ibid. 352 ; New Hamp. Co., 29 Wisconsin, 589. But see Osborne I. F. Co. v. Piatt, 5 New Hamp. 193; V. Schutt, 67 Missouri, 712; Conley v. Stone v. Dean, Ibid. 502; Fletcher v. Chilcote, 26 Oiiio State, 320; Chilcote v. Fletcher, 7 Ibid. 452; Ilowland v. Spen- Conley, 36 Ibid. 545. - cer, 14 Ibid. 530 ; Hitchcock v. Eger- * Lock V. Johnson, 30 Maine, 404; ton, 8 Vermont, 202 ; Van Amee y. Jack- Pierce V. Chicago & N. R. Co., 36 Wis- son, 35 Ibid. 173 ; Fuller v. Jewett, 37 consin, 283 ; Chicago & A. R. R. Co. ;;. Ibid. 473 ; Rundlct v. Jordan, 3 Maine, Ragland, 84 Illinois, 375 ; Chicago, R. I., & 47 ; Copeland v. Weld, 8 Ibid. 411 ; Clark P. R. R. Co. V. Mason, 11 Bradwell, 525. v. Viles, 32 Ibid. 32 ; Wilson v. Wood, 34 6 Wigwall I'. Union C. & M. Co., 37 Ibid. 123 ; Smith r. Kennebec & Portland Iowa, 129. See Randolph v. Little, 02 R. R. Co., 45 Ibid. 547 ; Skowhegan Bank Alabama, 396. v. Farrar, 40 Ibid. 293 ; Bowker v. Hill, CO 6 Maine F. & M. Ins. Co. v. Weeks, 7 Ibid. 172; Fitch v. Waite, 5 Conn. 117 ; Mass. 438 ; Perry v. Coates, 9 Ibid. 537 ; Grosvcnor v. Farmers & Meclianics' Bank, Dickinson v. Strong, 4 Pick. 57 ; An- 13 Ibid. 104 ; Jones v. Norris, 2 Alabama, [418] CHAP. XX.] WHAT PKOPERTY WILL CHARGE GARNISHEE. § 481 From among the many cases governed by this rule the following will serve for illustration. Where it appeared from the garnishee's answer that he had become security for the defendant, who, in order to indemnify him, had placed in his hands certain notes of third persons, the property of the defendant, it was held, that the notes not being personal property capable of being seized and sold on execution, the garnishee was not liable ; and that it made no difference whether the proceeds of the notes were nec- essary or not for the indemnification of the garnishee.^ So, where the garnishee disclosed that he held a certain amount of the notes or bills of the Hillsborough Bank, which had been presented for payment and refused, and which belonged to the defendant, it was decided that as such bills or notes were mere cJwses in action^ the garnishee could not be charged in respect thereof.^ But where a garnishee had received for the defendant bank-bills which were current as money, he was charged." Where it appeared that the garnishee had received from the defendant the evidence of a contract made by a third person, engaging to deliver to the defendant three hundred barrels of beef, such 526; Marston v. Carr, 16 Ibid. 325 ; Pearce V. Shorter, 50 Ibid. 318 ; Moore v. Pillow, 3 Humphreys, 448 ; Raiguel v. McCon- nell, 25 Penn. State, 362 ; Allen v. Erie City Bank, 57 Ibid. 129; Wilson v. Al- bright, 2 G. Greene, 125; Deacon v. Oliver, 14 Howard Sup. Ct. 610; Price V. Brady, 21 Texas, 614; Taylor v. Gil- lian, 23 Ibid. 508 ; Tirrell v. Canada, 25 Ibid. 455 ; Ellison v. Tattle, 26 Ibid. 283. 1 Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438 ; Dickinson v. Strong, 4 Pick. 57. 2 Perry v. Coates, 9 Mass. 537. In Massachusetts this case occurred. The Suffolk Bank was summoned as gar- nishee of tlie Nahant Bank, at a time when, under an arrangement between the two, the former had in its possession a large amount of the notes of the lat- ter issued as a circulating medium, and which the statute of that State author- ized to be attached. It appeared that the Suffolk Bank was accustomed to take up the bills of the Nahant Bank in the common course of business, to charge the amount to the latter, and from time to time to return the bills thus charged to the Nahant Bank ; and that to meet the amounts so charged, the Nahant Bank was accustomed to place funds with the Suffolk Bank, which went to balance the account. The question was, whether the Suffolk Bank could be charged as garnisliee in respect of its possession of the bills of the Nahant Bank. The court held, that the Suffolk Bank must be con- sidered, either, as the agent of the Nahant Bank, taking up the bills of the latter for its account out of funds provided for it, or advanced by the Suffolk Bank for that purpose, — in which case, the notes, when so taken up, were no longer bills issued and circulated as money, and therefore not attachable, — or as holders of the bills on their own account, for value, and entitled to hold them as vouchers to support the charges in their account, and thus cancel and discharge the credits given by them to the Nahant Bank ; and that in either view the Suf- folk Bank was not chargeable. Wildes V. Nahant Bank, 20 Pick. 352. 3 Morrill v. Brown, 15 Pick. 173; Love- joy V. Lee, 35 Vermont, 430. [419] § 481 WHAT PKOPERTY WILL CHARGE GARNISHEE. [CHAP. XX. contract was held to be a mere cJiose in action^ and not attachable in the garnishee's hands.^ So, where persons to whom the defend- ant had made an assignment, for the benefit of creditors, of goods and merchandise, book debts, promissor}^ notes, and other ehoses in action, were garnished, under such circumstances that, if they had had goods or money in their possession they would have been liable, it was held that, having only ehoses in action, they could not be charged.'-^ So, where an assignee for the benefit of cred- itors had sold the assigned effects on credit, and taken notes from the purchasers, and before the maturity of the notes he was garnished, it was decided that he could not be charged.^ So, an attorney who has in his care a debt in the course of collection, belonging to a defendant in attachment, cannot be holden as gar- nishee on tliat account.^ So, a note deposited in one's hands, and not collected, will not subject him as garnishee, even though a judgment has been recovered on it in his name.^ So, where one had received a check, with authority to draw the amount, and pay it to the defendant on certain conditions, which had been complied with ; but it did not appear that he had received the money ; it was decided that he could not be charged on account of the check.^ 1 Andrews v. Ludlow, 5 Pick. 28. 202 ; Fitch v. Waite, 5 Conn. 117 ; Mayes 2 Lupton V. Cutter, 8 Pick. 298 ; Gore v. Phillips, GO Mississippi, 547. V. Clisby, Ibid. 555 ; Copeland v. Weld, ^ Rundlet v. Jordan, 3 Maine, 47. 8 Maine, 411. ^ Lane v. Felt, 7 Gray, 401. See Han- 8 Hopkins v. Ray, 1 Metcalf, 79. cock v. Colyer, 90 Mass. 187 ; Knight v. * Hitchcock V. Egerton, 8 Vermont, Bowley, 117 Ibid. 551. [420J CHAP. XXI.] WHAT P0SSESSI02? WILL CHARGE GARNISHEE. § 483 CHAPTER XXI. WHAT POSSESSION OF PERSONAL PROPERTY BY A GARNISHEE WILL MAKE HIM LIABLE. § 482. I. Actual and constructive possession. When a gar- nishee is summoned, the effect of the proceeding is to attach any personal property of the defendant in his possession, capable of being seized and sold under execution. And it is a general rule that the property must be in the actual possession of the gar- nishee, or within his control, so that he may be able to turn it out on execution.! But though not in his actual possession, if he have the right to, and the power to take, immediate posses- sion, he must be regarded as being in possession.^ The proposition, however, that a garnishee is liable for personal property of the defendant in his possession, applies only to cases where he knows that, when garnished, he had such property in his hands. If he then had property in his possession, received from a third person, which was in fact the defendant's, but not known to him to be so, and he parted with it before he became aware of that fact, he cannot be charged in respect thereof.^ § 483. Constructive possession of the defendant's property will not suffice to make the garnishee liable. Thus, where the garnishee had left in the hands of merchants in a foreign port goods of the defendant, which had been under his charge as mas- ter of a schooner, it was held, that he was not liable on account of the goods, the same not being in his possession when he was garnished, though he held the receipt of the foreign merchants therefor.^ So, where goods were consigned by merchants in 1 Andrews v. Ludlow, 5 Pick. 28 ; Bur- * Willard r. Sheafe, 4 Mass. 235. This rell V. Letson, 1 Strobhart, 239. case does not, in itself, appear to have 2 Lane v. Nowell, 15 Maine, 86 ; Morse been decided on this ground, but in An- V. Holt, 22 Ibid. 180. See § 484. drews v. Ludlow, 5 Pick. 28, it is so stated 3 Bingham v. Lamping, 26 Penn. State, by Wilde, J. 340. [421] § 485 WHAT POSSESSION [CHAP. XXI. Philiiclelpliia to merchants in Boston, and after the latter received the bill of lading, but before the goods arrived, they were garnished, it was decided that they were not liable, not having the goods in possession when summoned.^ So, where the gar- nishees stated that a part of the property transferred by the defendant to them consisted of parts of certain ships, with their cargoes, then at sea, they were held not chargeable, because they had not actual, but only constructive, possession of the property .^ § 484. But, where the agent of a garnishee had collected money for the garnishee, in respect of which the latter would have been liable, had he himself received it, he was charged, though at the time of the garnishment the money had not been paid over to him by the agent.^ So, where one in Pennsylvania was, b}^ his agent in Ohio, in possession of goods of the defend- ant, he was charged as garnishee of the defendant under an attachment taken out in Pennsylvania.* § 485. II. Possession considered with reference to privity of con- tract and of interest between the garnishee and the defendant. The garnishee must not only have actual possession of the defendant's effects, but there must be, except in cases of fraudulent disposi- tions of property, privit}^ between him and the defendant, both of contract, express or implied, and of interest, by which the defendant would have a right of action against the garnishee, to recover the property for his own use, either at the present or some future time.^ The want of privity, either of contract or of interest, will generally prevent the garnishee's being charged. Property may be in the garnishee's hands, in which the defend- ant has an interest, but which the garnishee may be under no legal obligation to deliver to him ; and as the plaintiff can exer- cise no greater control over the property in such case than the 1 Grant v. Shaw, 16 Mass. 341. The session does not seem to have been before report of this case does not indicate the court in this case. See McDonald v. clearly the point stated in the te.xt, but Gillett, 69 Maine, 271. in Andrews v. Ludlow, 5 Pick. 28, it is * Childs v. Digby, 24 Penn. State, 28. stated by Wilde, J., to have been de- See Glenn v. Boston & Sandwich Glass cided on that ground. Co., 7 Maryland, 287. 2 Andrews v. Ludlow, 5 Pick. 28 ; 5 Po^t, § 400 ; Cushing's Trustee Pro- Nickerson v. Chase, 122 Mass. 296. coss. § 101 ; Skowliegan Bank v. Farrar, 8 Ward V. Lamson, 6 Pick. 358. The 46 Maine, 293 ; Huot v. Ely, 17 Florida, question of actual and constructive pos- 775. [422] CHAP. XXI.] WILL CHARGE GARNISHEE. § 487 defendant conld, the garnishee cannot be charged. There may, too, be property in the garnishee's hands, the legal title to which is in the defendant, and for which the defendant might maintain an action against the garnishee, and yet the latter not be liable as garnishee. Such, for instance, as held in New Hampshire, is the case of a party who has taken the goods of another by tres- pass, and who cannot, in respect thereof, be held as garnishee of the owner, though the legal title is in the latter, and he might maintain an action for the trespass.^ Such, too, is the case of one in whom the legal title to goods is vested, but who has no interest of his own in them. § 486. The doctrine here advanced may be illustrated by sev- eral cases which have arisen ; and it will be considered, 1. with reference to privity of contract between the garnishee and the defendant, and, 2. with reference to privity of interest between them. § 487. 1. Privity of Contract. Money was placed in the hands of certain trustees, to be by them appropriated, at their discre- tion, for the maintenance and support of a son of the donor, during his life, and afterwards to distribute it among the other children of the donor. While yet a portion of the money was in the hands of the trustees, they were summoned as garnishees of the son ; and the court held, that they could not be charged, because they were in no view indebted to him, and he could maintain no action for the sum committed in trust to them. Here, the defendant had an interest in the money in the gar- nishee's hands, but there was no privity of contract.^ A. made his bond to B., conditioned to pay B. a yearly sum during the life of C, to be applied by B. to the maintenance of C, his wife or family, or any member of it, according to B.'s judgment and discretion. A. was summoned as garnishee of B. and C, at a time when a portion of the annuity was due and unpaid ; and the court held, that he could not be charged as garnishee of either, because, first, he was under no legal obligation to C, the cestui que trust, and C. could maintain no action against him ; 1 Despatch Line v. Bellamy Man. Co., ^ White v. Jenkins, 16 Mass. 62. 12 New Hamp. 205. See Everett v. Herrin, 48 Maine, 537. [423] § 487 WHAT POSSESSION [CHAP. XXT. and, seco7id, though B., the trustee, might maintain an action against him for the money, yet B. was to receive the money, not for his own use, but to be applied to the support of C. In other words, between A. and C. there was no privity of contract, and B. had no interest in the money. ^ A sheriff attached goods of the defendant's, and employed an auctioneer to sell them at pub- lic auction, and the auctioneer, while the proceeds of the sale were in his hands, was summoned as garnishee of the defendant ; and it was held, that he was not liable, as there was no privity be- tween him and the defendant ; and that he should account to the officer who employed him.^ A. received a certain sum of money from B., for the purpose of paying off a mortgage resting upon the land of C. A. was summoned as garnishee of C, and was discharged, because the money was not C.'s, and because there was no privity between A. and C.^ So, where A. delivers to his agent B. money to be paid over to C. Until C. acquires a knowl- edge of the delivery to B. for that purpose, and B. has agreed with him to deliver it to him, there is.no privity of contract be- tween them, and B. cannot be charged as garnishee of C* So, where a son was permitted to build a house on his father's land, under the expectation that the land would, b}^ devise, come to him at the death of his father, and the father was summoned as garnishee of the son ; it was held, that he could not be charged, because there was no contract, express or implied, that he should be accountable to the son for the value of the house. ^ So, where certain policies of insurance were assigned by A. to B., and the assignment contained a clause to the effect that any surplus of the proceeds of the policies should be paid to C, who was not a party to the assignment ; it was held, tluit B. could not be charged 1 Brigden v. Gill, 16 Mass. 522. See Burnham v. Beal, 14 Allen, 217 ; Kelly Hinckley v. "Williams, 1 Gushing, 490; v. Koberts, 40 New York, 432; Kelly v. Mcllvaine v. Lancaster, 42 Missouri, 'JO. Babcock, 49 Ibid. 318. 2 Penniman I'. Kuggles, G New llanip. ^ Wells v. Banister, 4 Mass. 514; IGG. Bean v. Bean, 33 New Ilamp. 279. But 3 Wright V. Foord, 5 New Ilamp. 178. where the property in the garnishee's * Post, § 514 ; Neuer v. O'Fallon, 18 hands is in the name of one as a trustee, Missouri, 277. See Briggs v. Block, holding it merel}' for the use of the de- Il)id. 2H1 ; Barnard r. Graves, IG Pick, fondant, this presents no obstacle to 41 ; Huntley v. Stone, 4 Wisconsin, 01 ; -holding it by garnishment, because the Felcli V. Eau Pleine L. Co., 58 Ibid. 431 ; beneficial interest is in the defendant, Eichelberger v. Murdock, 10 Maryland, accompanieil with a present right of pos- 373; Nicholson v. Crook, 50 Ibid. 55; session and enjoyment. Paynes y. Lowell Towne v. Griffith, 17 New Ilamp. 165; I. B. Society, 4 Gushing, 313. [424] CHAP. XXr.] WILL CHARGE GAENISHEE. § 489 as garnishee of C, because there was no privity of contract be- tween B. and C.^ § 488. A garnishee answered that he had in his hands a sum of money belonging to A., and that lie had received notice of an assignment of the money by A. to the defendant ; but it did not appear that the garnishee had ever promised the defendant to pay it to him ; and he was held not to be chargeable, because, though an action for the money might be maintained against him in the name of A., for the defendant's use, yet there was no privity of contract between him and the defendant, which would make him liable.^ § 489. 2. Privity of Interest. The next class of cases, illus- trative of the general doctrine advanced, is, where there is a privity of contract between the garnishee and the defendant, but no privity of interest. In such cases, though the garnishee have in his possession property or money which he is bound by con- tract to deliver or pay to the defendant, and for which, therefore, the defendant might maintain an action against him, yet he can- not be charged as garnishee in respect thereof, because the de- fendant himself has no interest therein. Such are the cases where the effects in the garnishee's hands belong to the defend- ant as a mere trustee or agent for others. There, it is not only sound doctrine technically, but in entire accordance with every principle of justice, that though the legal title to the effects in the garnishee's possession be in the defendant, yet as they do not in fact belong to him, but to others, they shall not be taken to discharge his debts.^ Therefore, where it appeared from the answer of the garnishee, that he had executed a bond to the defendant, the condition of which was, that he should pay the de- fendant a certain sum, part of which only was the defendant's property, and the rest for the benefit of other persons ; the court lield tliat the garnishee should not be charged for that part of the bond which was due to the other persons.* So, in the case 1 Field V. Crawford, 6 Gray, 116. New Hamp. 222 ; Chapin v. Conn. R. R. 2 Folsom V. Haskell, 11 Cushing, 470. Co., 16 Gray, 09 ; Halpin v. Barringer, 3 Simpson v. Harry, 1 Devereux & 26 Louisiana Annual, 170; Granite Nat. Battle, 202. See Miller v. Richardson, Bank i'. Neal, 71 Maine, 125; Kichardson 1 Missouri, 310 ; Jones i\ ..Etna Ins. Co., v. Whiting, 18 Pick. 530. 14 Conn. 501 ; Pickering v. Wendell, 20 * Willard v. Sturtevant, 7 Pick. 194. [425] § 490 WHAT POSSESSION [CHAP. XXI. previously referred to, where A. had given a bond to B., by which he bound himself to pay B. a certain yearly sum, to be appropriated to the support of C, and A. was summoned as gar- nishee of B. ; he could not be charged, because the money due on the bond was not B's own, but was to be appropriated for the use of others.^ So, where a factor del credere sold goods of his principal, without the purchaser knowing at the time that he was a factor, but was afterwards notified by the owner of the goods that they were his ; it was decided that the debt due for the goods belonged to, and was claimable by, the principal, and that the purchaser could not be held as garnishee of the factor, for any thing beyond the amount of the factor's lien for his com- mission.2 So, where goods are transported over two or more connecting railroads, the freight on which for the whole distance is, by arrangement between them, to be collected of the con- signee by the road which delivers the goods to him ; if the con- signee be summoned as garnishee of that road, he can be charged only for so much of the freight money as that road earned ; for, though he is in privity of contract with it, the privity of interest extends only to that part of the money which belongs to it.^ § 490. Privity of Contract and of Interest combined. We see from the foregoing citations the force and scope of the. doctrine that privity of contract and of interest must in general combine in order to charge the garnishee in respect of property of the defendant ; and, wherever such combination exists, there is a right of action in the defendant against the garnishee, either at the present or a future time. The presentation of a few cases illustrative of this point will close the consideration of this branch of the subject. Where a fund is in the hands of a trustee on a trust which the cestui que trust can at any moment revoke by a demand of the money, and on a refusal of payment can immediately maintain an action in his own name to recover it, the trustee can be held as garnishee of the cestui que trust on account of the fund.-* So, where a fund is held by a trustee for four cestuis que trusty and their proportional shares have been 1 BriRclcn v. Gill, 10 Mass. 522. Co., 67 Maine, 805. See First Nat. Bank 2 Titcomb v. Seaver, 4 Maine, 542. v. V. & O. R. Co., 2 Federal Reporter, 831. 8 GotiM V. Newbiiryport K. Co., 14 * Estabrook. i'. Earle, 97 Mass. 302. Gray, 472 ; Bowler v. European & N. A. R. [42G] CHAP. XXI.] WILL CHARGE GARNISHEE. § 490 adjusted on a bill in equity brought against him by three of them, he is chargeable as garnishee for the share of the fourth cestui que trusts So, where property is placed in the hands of one, to be sold, and the proceeds applied to a particular purpose, and upon the sale there appears a surplus of money over what is necessary for the given purpose, he is chargeable as garnishee of the person to whom the property belonged.^ So, one holding real estate of the defendant in his own name, but in trust for the defendant, and accountable to the defendant for the rents and profits thereof, or for the proceeds of the same, if sold, is liable as gar- nishee of the defendant, to the amount of the rents and profits in his hands.3 So, where a sum of money was bequeathed to trus- tees, who were required to pay annually the interest thereon to A. : it was held, that the trustees might be charged as garnishees of A. in respect of the interest.^ So, where the principal in a bond to the United States, having become a defaulter and left the country, his surety paid, without suit, 81,000, and then arrested the principal in Matanzas, in a suit on a bond of indem- nity, and upon receiving 82,000 gave this bond up to the princi- pal. The bond to the United §tates was afterwards put in suit, and the judgment recovered on it was satisfied by a levy upon land supposed to belong to the principal, which the United States afterwards sold, and the sum paid by the surety was restored to him. After this the surety was summoned as garnishee of the principal, and it was held, that the principal was entitled to recover back the money paid in Matanzas, and that the surety was therefore liable as his garnishee.^ So, where property claimed by A., being libelled in an admiralty court as a prize, was delivered to B., to indemnify him for bonds given by him in that court in behalf of A., and after a decree of restitution by which the bonds so given were discharged, B. was summoned as garnishee of A., he was charged as such, because A. had a right of action against him to recover the property so delivered.^ So, 1 Haskell v. Haskell, 8 Metcalf, 545. 3 Russell v. Lewis, 15 Mass. 127. 2 Pierson v. Weller, 3 Mass. 564 ; New * ISIathews v. Park, 1 Pittsburgh, 22 ; England Mar. Ins. Co. v. Chandler, 16 Park v. Mathews, 36 Penn. State, 28; Ibid. 275 ; AVebb i-. Peale, 7 Pick. 247 ; 2 Grant, 1-36. Richards v. Allen, 8 Ibid. 405 ; Ilearn v. 5 Watkins v. Otis, 2 Pick. 88. Crutcher, 4 Yerger, 461 ; Cook v. Dillon, 6 Thompson v. Stewart, 3 Conn. 171. 9 Iowa, 407 ; McLaughlin v. Swann, 18 Howard Sup. Ct. 217. [427] § 491 WHAT POSSESSION [CHAP. XXI. where a garnishee answered that, as guardian of an infant, he had sold land to the defendant, under a license of court, but that he had not given the bond nor taken the oath required by law previous to such sale ; that part of the purchase-money had been paid, and a deed had been executed and placed in the hands of a third person, to be delivered when the residue should be paid ; and that the defendant, soon after the sale, entered and was still in possession of the land ; it was held, that, because there was neither oath nor bond of the guardian, the sale was invalid, and the purchaser, who was the defendant in the attachment, had a right of action against the guardian to recover back what he had paid of the purchase-money, and therefore the guardian was liable as his garnishee.^ So, one who contracts to sell personal property, in his possession, but of which he is not the owner, to be delivered at a future day, and receives the purchase-money, but does not deliver the property, by reason of its having been reclaimed by the real owner, may be held as garnishee of the vendee for the amount of the purchase-money .^ § 491. But it has been held, that it is not alwa^-s necessary that privity of contract and of interest should combine to render the garnishee liable. Where there is privity of contract, but not of interest, but the position of affairs between the garnishee and the defendant is such that, to exempt the garnishee from liability, would tend to an evasion of the force and effect of the law, and to open the door for fraud, the garnishee will be charged, though the privity of interest do not exist. This was held in a case in Pennsylvania, where in an attachment against Ai, the Bank of the United States was summoned as garnishee ; and it appeared that after the garnishment (an attachment in Pennsylvania having the effect of holding effects coming into the garnishee's hands after he is garnished), the defendant deposited in the bank sun- dry sums of money, and also procured the bank to purchase or discount drafts drawn by him in his own name, the proceeds of which were passed to his credit. The moneys thus passed to the defendant's credit were drawn out on his checks. It appeared that, though the accounts were kept with the defendant in his own name, he was in fact the agent of others in all the transac- tions, and the jury found that all the funds were deposited and 1 Williams v. Reed, 5 Tick. 480. ^ Edson v. Trask, 22 Vermont, 18. [428] CHAP. XXI.] WILL CHAEGE GARNISHEE. § 491 a drawn out by him as agent for others. Notwithstanding the jury thus found, the court, on grounds of public policy, and for the prevention of fraud, held the bank liable as garnishee of A.i And in Nebraska, where the loaning of any part of the public money by a public officer is declared to be a high crime, pun- ishable by fine and imprisonment in the penitentiary, a county treasurer deposited in a bank, subject to his drafts as county treasurer, a sum of money, collected by him as taxes, the account of which deposit was in the name of " York county, Nebraska, by L. J. G. treasurer ; " and while the money was so deposited the bank was summoned as garnishee of L. J. G. It was urged against the liability of the bank as garnishee, that the money was public money, and under official control, and ought not to be used to pay the private debts of the county treasurer ; which might have been a sufficient defence if the deposit had been a special one; but the court held, that a depositing of money, generally, in a bank was, in legal effect, the loaning of it to the bank ; tliat such loaning of public money by a public officer was a crime, the doing of which the court could not construe as conferring any rights upon either of the participants in it ; that neither party to such a prohibited transaction could be heard in a court of justice to.urge such act, or any quality thereof, either as a cause of action or ground of defence ; that the bank had no defence against the garnishment on the ground that the funds which it received from L. J. G. were county funds which he was prohibited by public law from depositing in any bank ; and that it did not lie in his mouth to deny that the funds were his private money, which alone he had the right to deposit in bank, and the bank had a right to- receive from him on deposit ; and upon these grounds the bank was charged as garnishee.^ § 491 a. But where money is deposited in a bank by one as agent, and the account is understood both by the depositor and the bank to be an agency account, containing only the moneys of other persons for whom he was agent, and no moneys of his own, 1 Jackson v. Bank U. S., lOPenn. State, derson] we hold Jackson v. Bank of the 61. See Paxson v. Sanderson, 2 Philadel- United States to be good law, and it is phia, 30.3. In Bank of ^;orthern Liberties not our intention to disturb it." V. Jones, 42 Penn. State, .536, the court ^ yirst Nat. Bank v. Gandy, 11 Ne- said : " Notwithstanding the disapproba- braska, 431. tionof a learned judge [in Paxson v. San- [429] § 491 a WHAT POSSESSION, ETC. [chap. XXI. it can no more be subjected by garnishment to the payment of the agent's debt, than any other money of his principals could be ; for though there is privity of contract between the bank and the defendant, there is no privity of interest.^ And in such case the account itself is notice to the bank that the money is not the defendant's, and the latter is a competent witness to prove that it did not belong to him, but to others.^ And where a deposit was made in the agent's name, without designation of his repre- sentative character, but the principal, after the garnishment of the bank, gave notice to it that the money was his, and not the agent's, it was held not to be attachable for the debt of the agent.-^ But if the party whose money is deposited in a bank in the name of another as his trustee, knows of the garnishment of a bank in a suit against the trustee for his own debt, and takes no step to assert his right to the money ; and the bank is charged as garnishee, and pays the amount for which it is charged ; the cestui que trust cannot maintain an action against the bank for the money, but must seek his remedy for the loss against the trustee ; even though the bank was informed by the trustee when the deposit was made, that the money belonged to the cestui que trusts 1 Bank of Northern Liberties v. Jones, cock, 2 Ibid. 310 ; Granite Nat. Bank v. 42 Penn. State, 536 ; Jones v. Bank of Neal, 71 Maine, 125. Northern Liberties, 44 Ibid. 253. ^ Farmers & Mechanics' Nat. Bank v. 2 Jones f. Bank of Northern Liberties, King, 57 Penn. State, 202; Morrill v. 44 Penn. State, 253; McCormac j?. Han- Eaymond, 28 Kansas, 415. * Kandall v. Way, 111 Mass. 50G. [430] CHAP. XXII.] CAPACITY IN WHICH GARNISHEE, ETC. § 494 CHAPTER XXII. THE garnishee's LIABILITY, AS AFFECTED BY THE CAPACITY IN WHICH HE HOLDS THE DEFENDANT'S PROPERTY. § 492. The frequent occasions when money or other property is in the hands of officers of the hiw, and of persons acting under legal authority, would naturally give rise to efforts to reach it by attachment against the individuals claiming it, or to whom it might be supposed to belong ; and such efforts have been made, in reference to almost all descriptions of persons holding property or money under official or legal authority. Administrators, executors, and guardians, ministerial, judicial, and disbursing officers, and municipal corporations, have all, at times, been sub- jected to garnishment, and numerous adjudications as to their liability have been the result. § 493. In Massachusetts, at an early day, the ground was taken, that a public officer who has money in his hands, to satisfy a demand whicli one has upon him merely as a public officer, cannot, for this cause, be adjudged a garnishee. The case was that of a county treasurer, who disclosed in his answer that he had a certain sum of money in his possession, officially, which was due to the defendant for services as a juror, and which he was by law bound to pay to the defendant. The court decided against the garnishment on two grounds ; one, having relation to the peculiar statute of the State, the other as stated above ; but it is evident that, had the former ground not existed, the latter would have been considered sufficient.^ The same principle was recognized and applied in Connecticut.^ § 494. The Supreme Court of Massachusetts took a step fur- ther, and announced the broader principle, that no person deriv- 1 Chealy v. Brewer, 7 Mass. 250. See Eckert, 3 Penn. State, 368 ; Pierson v. Clark V. Clark, 62 Maine, 2-55 ; Wilson v. McCormick, 1 Penn. Law Journal R. 201. Ridgely, 4G Maryland, 235; Bulkley v. - Stillman v. Isham, 11 Conn. 124. [431] § 496 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. ing liis authority from the law, and obliged to execute it according to the rules of law, can be charged as garnishee in respect of any money or property held by him in virtue of that authority .^ The Supreme Court of Illinois stated the law to be, that a person deriving his authority from the law to receive and hold money or property, cannot be garnished for the same when held by him under such authority .^ The Supreme Court of Alabama declared it to be well established that a public officer, who has public moneys in his custody, for disbursement in satisfaction of de- mands on the government, cannot be summoned as the garnishee of one having a legal right to demand and receive from him such moneys.^ § 495. Having stated the general rule, in its threefold form of expression by different courts, we proceed to examine its appli- cation to the various descriptions of persons holding money or property in an official or legal caj)acity. § 496. Administrators. In the Massachusetts case just cited, the garnishee answered that he had no goods, effects, or credits of the defendant in his possession, except as he was administrator of P. B., deceased ; that previous to the death of the said P. B., the defendant had commenced a suit against P. B., to recover the value of certain hides, which suit was pending at the time of the garnishee's answer. The court, without adverting to the facts of the case, or, as before stated, to the terms of the statute, laid down the comprehensive rule above indicated, merely adding, " We have determined this in the case of public officers, and the reason of those decisions applies with equal force to the case of an administrator." ^ The Supreme Court of Maine recognized and enforced the same principle, in a case where the intestate was clearly indebted to the defendant, and the administrator had money in his hands ready to pay the debt.^ And so in Rhode Island.^ ' Brooks V. Cook, 8 Mass. 246. See ' Pruitt v. Armstrong, 5G Alabama, Colby I'. Coates, G Ctisliing, 558; Tliaycr 300. V. Tyler, 5 Allen, 94 ; Ladd v. Gale, 57 * Brooks v. Cook, 8 Mass. 246. New Ilamp. 210. ^ Waitc v. Osborne, 11 Maine, 185. •■2 Millison v. Fisk, 43 Illinois, 112. «* Conway v. Armington, 11 Khode [432] Island, 116. CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 497 In Vermont, the court admitted that without the aid of express , statute the garnishment of an administrator was inadmissible.^ In Delaware,^ and in West Virginia,^ an administrator cannot be summoned as garnishee. In Arkansas, administrators are considered exempt from gar- nishment, even after a demand has been allowed against the estate, in favor of the defendant, and an order made by the pro- bate court upon the administrator to pay it."^ In Alabama, it seems to be conceded that an administrator may be charged as garnishee in respect of a debt due from his intes- tate to the defendant,^ but not unless he is summoned in his representative capacity.^ But it was there held, that an admin- istrator could not be charged as garnishee of one of the heirs of an estate, in respect of the undivided and unascertained interest of the heir in the estate.''' In Illinois, it is held, that an administrator cannot be charged as garnishee of an heir of his intestate, before an order of dis- tribution has been made by the probate court ; ^ but may be afterwards.^ But this immunity has been held to extend only to the person himself, holding money or property in this representative capa- city. Therefore, one wha had collected for A., executor of a decedent, the amount of a promissory note made payable to A., as executor, was charged as garnishee in a suit against A. in his private capacity.^^ Xhe same would doubtless have been done if A. had been an administrator, and the note had been payable to him as such. § 497. In New Hampshire, Delaware, and Missouri, while the principle announced in Massachusetts was recognized as sound, 1 Parks V. Cushman, 9 Vermont, 320. ^ Terry v. Lindsay, 3 Stewart & Porter, 2 Marvel v. Houston, 2 Harrington, 34f>. 317 ; Tillinghast v. Jolinson, 5 Alabama, In this case it was also ruled that under 514. an execution issued on a judgment ren- ^ Tillinghast v. Johnson, 5 Alabama, dered against an administrator for a debt 514. of his intestate, a debtor of the decedent ^ Mock v. King, 15 Alabama, 66. could not be garnished. And see Harts- ^ Crownover v. Bamburg, 2 Bradwell, home V. Henderson, 3 Penn. Law Journal 162. R.^ 511. 9 Bartell v. Bauman, 12 Bradwell, 450. 3 Parker v. Donnally, 4 "West Virginia, i" Coburn v. Ansart, 3 IMass. 319. But 648. see Lessing v. Vertrees, 32 Missouri, * Thorn v. Woodruff, 5 Arkansas, 56 ; 431. Fowler v. McClelland, Ibid. 188. 28 [433] § 498 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. it was considered to be inapplicable, where the administrator had, by the proper tribunal, been adjudged and ordered to pay a cer- tain sum to a creditor of the estate ; and in such case the admin- istrator was charged as garnishee of the party to whom the money was ordered to be paid.^ The reason of this exception was given by the Superior Court of New Hampshire, and adopted by the Supreme Court of Missouri. In tlie language of the former, " an administrator, till he is personally liable to an action in consequence of his private promise, the settlement of the estate, some decree against him, or other cause, cannot be liable to a trustee process. Because, till some such event, the principal has no ground of action against him in his private capacity ; and he is bound to account otherwise for the funds in his hands. The suit against him, till such an event, is against him in his representative capacity, and the execution must issue to be levied de bonis testatoris and not de bonis propriis. But in the present case the trustee was liable in his private capacity to the defend- ant for the dividend. The debt had been liquidated, and a decree of payment passed. The debt was also due immediately. Execution for it would run against his own goods ; and the trustee process would introduce neither delay nor embarrassment in the final settlement of the estate." ^ § 498. In some States statutes have been enacted authorizing the garnishment of executors and administrators, under which cases have been decided. In Vermont, such a law has been in existence since 1833 ; and under it an administrator, who had been decreed by the probate court to deliver property to a female distributee of the estate, was charged as garnishee of her hus- band ; the court holding that after distribution made the prop- erty vested in the husband absolutely.^ And where an estate had been fully settled, and it had been determined that A. was entitled to $58 as his share thereof, but the probate court had not yet made an order for its payment ; the administrator was charged as garnishee of A. to that amount.* In Pennsyl- vania, under a statute which in terms authorized the garnishment 1 Adams v. Barrett, 2 New Ilamp. - Adams v. Barrett, 2 New Ilamp. o'i. 371; Fitcliett v. Dolbee, .3 Harrington, ^ Parks y. Cushman, 9 Vermont, 320. 207; Curling v. Ilytle, 10 Missouri, 374; * Iloyt v. Christie, 51 Vermont, 48. llichanls v. Griggs, 16 Ibid. 416. [434] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 499 of administrators, it was held, that a distributive share of per- sonal estate could not be attached, before the administrator had settled his account, so as to show what is due from him to the distributee.^ And in Massachusetts, where a similar statute now exists, it was decided that an administrator cannot be charged under a writ served on him between the time when administra- tion is decreed to him, and that of the filing and approval of his bond and the delivery of letters to him.^ And in Maine, under a statute authorizing " any debt or legacy, due from an executor or administrator, and any goods, effects, and credits in his hands as such," to be attached by garnishment, it was decided that an administrator could not be charged as garnishee, in respect of a negotiable promissory note of his intestate, held by the defend- ant, where the same statute forbids the garnishment of a person in respect of a negotiable note made by him.^ In Mississippi, where the statute provides that " executors and administrators may be garnished for a debt due b}'' their testator or intestate to the defendant," the insolvency of the estate does not prevent the garnishment, though the law there provides that an insolvent estate shall not be sued. The garnishment holds whatever dividend the estate may suffice to pay.'* § 499. Executors. It is well settled in England and the United States, as a general proposition, that an executor cannot be charged as garnishee, in respect of a pecuniary legacy bequeathed by his testator.^ To this, however, an exception would be made, as in the case of administrators, where the executor has been ordered by the probate court to pay the amount to the legatee.^ 1 Bank of Chester v. Ralston, 7 Penn. ceedings based on the original attachment State, 482; Hess v. Shorb, Ibid. 231; could reach it. McCreary v. Topper, 10 Ibid. 419. In - Davis v. Davis, 2 Cushing, 111. Eartle v. Long, 5 Penn. State, 491, an ^ Commercial Bank v. 2seally, 39 administrator was garnished, wlien there Maine, 402. was no law authorizing such a proceed- * Holman v. Fisher, 49 Mississippi, 472. ing. Eleven years afterwards such a ^ Priv. Lond. 2G7 ; Toller on Execu- law -was enacted, and the plaintiff then tors, 4th Am. Ed. 478 ; Barnes v. Treat, issued a scire Jacias to subject in the 7 Mass. 271; Winchell i'. Allen, 1 Coun. handsof the administrator certain monej-s 385; Shewell v. Keen, 2 Wharton, 332 ; which had then, by the death of the Barnett i-. "Weaver, Ibid. 418 ; Picquet v. widow, become payable to the defendant ; Swan, 4 Mason, 443 ; Whiteliead r. Cole- but the court held, that the law could man, 31 Grattan, 784 ; Case T. M. Co. v. have no retrospective operation, and that Miracle, 54 Wisconsin, 295. as the moneys were not, before its pas- ^ Fitchett v. Dolbee, 3 Harrington, 267. sage, liable to the attachment, no pro- Ante, § 497. [435] § 499 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. The earliest American case on this subject, with which we are acquainted, came up in Massacliusetts, where it was held, that a pecuniary legacy in the hands of an executor is not " goods, effects, or credits ; " and that the principles which exempt a public officer from garnishment, apply with equal force to the case of an executor ; and this without reference to whether the garnishment took place before or after the probate of the will.^ The same point came up in a similar case in Connecticut, where the garnishment took place after the probate of the will, and the acceptance by the executor of his appointment. The court below instructed the jury that the executor was in contem- plation of law the debtor of the defendant, the legatee, and liable to pay the plaintiff's claim out of his own estate. The Supreme Court, in reversing the judgment, used the following language : "An executor cannot be considered as the debtor of a legatee. The claim is against the testator or his estate ; and the executor is merely the representative of the deceased. There cannot be a debt due from the executor within the meaning of the statute. Nor can a person, like an executor, deriving his authority from the law, and bound to perform it according to the rules pre- scribed by law, be considered as a trustee, agent, attorney, or factor within the statute ; and this for the best of reasons. In the common case of agents, trustees, and factors, the creditor can easily place himself in the shoes of the absconding debtor, and prosecute his claim without inconvenience to the garnisliee. But such would not be the case with an executor. It would not only embarrass and delay the settlement of estates, but would often draw them from courts of probate, where they ought to be settled, before the courts of common law, who would have no power to adjust and settle his accounts. Such an interference 1 Barnes v. Treat, 7 Mass. 271. In making no mention of the legacy. It Maine, imder a statute providing that was objected, on the authoritj' of IJarnes " any debt or legacy due from an execu- ?•. Treat, tiiat legacies could not be re- tor or administrator, and any goods, garded as goods, effects, or credits, and effects, and credits in his hands, as such, tiiat therefore the legacy was not reached may be attaclied by trustee process," by the process ; but tiie court held, tliat, an executor was garnislied in respect of as the statute aulliorized the attachment a pecuniary legacy bequeathed to tlie of legacies, and yet made no change in defendant, and tlie writ was in tlie com- the form of the writ, it was equivalent mon form summoning the garnisliee to to a legislative declaration that legacies appear and show cause why execution should be regarded as included in one of should not issue against the defendant's those terms. Cunnuings v. Garvin, G6 " goods, effects, or credits " in his hands, Maine, 001. [436] CHAP. XXII.] noLDS defendant's property. § 501 might produce much inconvenience, and prevent the executor from executing his office as the law directs." ^ This subject received careful and able treatment by the Supreme Court of Pennsylvania, in a case where the amount involved was large, and the matter was fully discussed by eminent counsel. The question presented was, in effect, the same as in the Massa- chusetts and Connecticut cases, and the court, in an elaborate opinion, decided that an executor could not be charged in respect of a legacy due to the defendant.^ § 500. While, however, an executor cannot be charged as gar- nishee in respect of a legacy bequeathed by his testator, it does not follow that in no case can a legacy be subjected to attach- ment against the legatee ; for if land be devised with a legacy charged upon it, the devisee will be held as garnishee of the legatee, in respect of the legacy .^ § 501. In Massachusetts, a statute was enacted, providing that " any debt or legacy due from an executor or administrator, and any other goods, effects, and credits, in the hands of an executor or administrator, as such, may be attached in his hands by the process of foreign attachment." Under this statute it has been held, that a legacy in the hands of an executor is not such a con- tingent liability as will prevent its being attached ; for it can be ascertained by the settlement of the estate whether there are assets sufficient for the payment ; and when necessary, the court will continue the case until it can be seen whether the assets are sufficient for that purpose ; * or, if there be not personalty suffi- cient for the payment, until license can be obtained to sell real estate for that purpose.^ And if the executor, after being sum- moned as garnishee, pay over the legacy to the legatee, such payment will not protect him, and will be regarded as such an acknowledgment that there were assets in his hands, that he will 1 Wincliell I'. Allen, 1 Conn. 385. Palmer v. Noyes, 45 New Hamp. 174; 2 Sliewell V. Keen, 2 Wharton, 3.S2. Stratton v. Ham, 8 Indiana, 84. See Barnett y. Weaver, 2 Wharton, 418; ^ Piper v. Piper, 2 New Hamp. 4.30; Young r. Young, 2 Hill (S. C.) 425. The Woorlward v. Woodward, 4 Ilalsted, ILd. only States in which, so far as observed, * Holbroolc v. Waters, 19 Pick. 354 ; the garnisliment of an executor is al- Wlieeler v. Bowen, 20 Ibid. 5G.S. lowed, without express statutory autho- ^ Cady v. Comey, 10 Metcalf, 459. rity, are New Hampsliire and Indiana. [437] § 503 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. not be entitled to any continuance thereafter, for the purpose of having tliat fact determined by the settlement of the estate.^ In all such cases the attaching plaintiff must, if required by the executor, give bond to refund the money, if the same should be needed to satisfy any demands afterwards recovered against the estate, and to indemnify the executor.^ But there does not seem to be a disposition in the courts of that State to extend the operation of the statute in question beyond its clear intendment ; for they refused to charge an executor as garnishee of one to whose daughter a legacy was left, and which descended to him upon the death of his daughter ; because, before any proceeding could be instituted against the executor for the legacy, adminis- tration on her estate was necessary, and the legacy would be assets in the hands of her administrator.^ § 502. Guardians. Persons acting as guardians of infants are considered to stand in the same position as administrators and executors, and to come within the general principle before stated, and, therefore, not to be liable as garnishees in respect of prop- erty of their wards in their possession as guardians.* So, in New Hampshire, with regard to a guardian of an insane person ; at least until his accounts have been adjusted by the probate court, and a balance found in his hauds.^ § 503. Sheriffs. The same considerations which forbid the garnishment of executors, administrators, and guardians, require that all ministerial officers, having official possession of property or money, should be exempt from that proceeding. We accord- ingly find that, almost without exception, the courts in England ^ and this country have taken decided ground against all attempts to reach, by attachment, money in the hands of sheriffs, received and held by tliem in their official capacit3^ 1 Hoar V. INIiirsliall, 2 Gray, 251. from tliat of a minor, and charged as 2 Cady V. Coniey, 10 Metcalf, 459. garnishee a tenant of tlie ward's prop- 8 Stills V. Harmon, 7 Gush. 40G. crty, on account of rent due for the * Gassett v. Grout, 4 Metcalf, 48G; premises, which he was bound to pay to Hansen r. Butler, 48 Maine, 81 ; Perry v. the guardian. Thornton, 7 Khode Island, 15 ; Godbold ^ Davis v. Drew, 6 New Hamp. 399. V. Bass, 12 Bichardson, 202 ; Vierheller « 1 Leonard, 30, 264 ; Priv. Londini, V. Brutto, 6 Bradwell. 05. In Hicks v. 265; Comyns's Digest, Attachment, D •, Chapman, 10 Allen, 4(33, the Supreme Bacon's Abridgment, Customs of Lon- Court of Massachusetts distinguished the don, II. case of a siicndt-lwift under guardianship [488] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 505 § 504. This subject has been presented in three aspects: 1. By the levy of an execution by an officer on money in his hands col- lected on execution ; 2. By the levy of an attachment on such money ; and 3. By the garnishment of the sheriff in respect thereof. The object aimed at in each of these cases being the same, the general principles governing each are applicable to all, and cannot be affected by the difference in the modes of attain- ing the same result. Whether the proceeding be by actual levy or by garnishment, cannot change the aspect of the question, since the latter is in effect as much an attachment as the former. Hence there is no just ground for the distinction vrhich has been made in favor of allowing the money to be reached by garnish- ment as a right or credit in the sheriff's hands, though held not to be attachable by levy. Obviously, if its abstraction from his custody . by levy be inadmissible, the law will not tolerate its abstraction by a circuitous and less direct method. We shall, therefore, in the consideration of the subject, use indiscriminately the decisions relating to the three modes of proceeding above referred to. § 505. The first and leading case in this countr}^ bearing on this subject, was decided by the Supreme Court of the United States. A sheriff having collected money on execution, levied thereon an execution which he held against the person for whom the money was collected. Two questions were made : 1. Can an execution be levied on money ? and 2. Can it be levied on money in the hands of the officer ? The court decided the former affirm- atively, and held the following language in reference to the lat- ter : " The general rule of law is, that all chattels, the property of the debtor, may be taken in execution, and whenever an offi- cer has it in his power to satisfy an execution in his hands, it is his duty to do so, and if he omits to perform his duty, he must be accountable to those who may be injured by his omission. But has money, not yet paid to the creditor, become his prop- erty ? That is, although his title to the sum levied may be com- plete, has he the actual legal ownership of the specific pieces of coin which the officer may have received? On principle the court conceives that he has not this ownership. The judgment to be satisfied is for a certain sum, not for the specific pieces ■which constitute that sum, and the claim of the creditor on the [439] § 505 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. sheriff seems to be of the same nature with his claim under the judgment, and one which may be satisfied in the same manner. No right would exist to pursue the specific pieces received b}'' the officer, although they should even have an ear-mark ; and an action of debt, not of detinue, may be brought against him if he fails to pay over the sum received, or converts it to his own use. It seems to the court, that a right to specific pieces of money can only be acquired by obtaining the legal or actual possession of them, and until this is done, there can be no such absolute own- , ership as that execution may be levied on them. A right to a sum of money in the hands of a sheriff can no more be seized than a right to a sum of money in the hands of any other person, and however wise or just it may be to give such a remedy, the law does not appear yet to have given it." The court then com- ment upon some English cases which had been cited, rfud thus conclude the consideration of this branch of the case : " Consid- ering the case then either on principle or authority, it appears to the court that the creditor has not such a legal property in the specific pieces of money levied for him and in the hands of the sheriff, as to authorize that officer to take those pieces in execu- tion as the goods and chattels of such creditor." ^ The same conclusion was arrived at in Kentucky, in a case where the facts were almost identical.^ And so in Missouri.^ In Ohio, the same question arose, in consequence of a sheriff levying an attachment on money in his hands collected under execution. There the court said : " While the money remains in the hands of the officer, it is in the custody of the law. It does not become the property of the judgment creditor till it is paid over, and consequently it is not liable to be attached as his. The writ of attachment could not supersede the execution, or release the sheriff from a literal compliance witli its command, which required him to bring the money into court, so that it might be subject to their order. ... A strong argument might also be drawn from the mischievous consequences that would follow such a course of practice. It would lead to endless delay and vexa- tion. One attachment might follow another, till the whole demand was absorbed in costs."* 1 Turner v. Fcndall, 1 Cranch, 117. * Dawson v. ITolcomhe, 1 Ohio, 135. '^ First r. Miller, 4 Bibb, ;)11. See Prentiss v. Bliss, 4 Vermont, 513; 3 State V. Boothe, 68 Missouri, 54G. Dubois v. Dubois, G Cowon, 404; Crane [440] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 506 § 506. If, then, money in the hands of a sheriff in his official capacity cannot be levied on by execution or attachment, can it be reached by garnishment ? In Vermont and New Jersey, the courts have held, that though the levy is impracticable, yet the garnishment may be maintained, on the ground that the money is a right or credit of the defendant's in the sheriff's possession.^ In New Hampshire, the doctrine was at one time incidentally as- serted, that the sheriff could not be garnished before the return day of the execution ; ^ but afterwards the same court receded from this view, and sustained such a garnishment.^ These de- cisions are, however, overborne by the weight of authority. This question received an early consideration and decision in Massachusetts."^ A sheriff had collected money on execution, and before the writ was returnable the money was attached in his hands by garnishment, under an attachment against the ex- ecution creditor. The court were unanimous in discharging the garnishee. Parker, J., said : " When an officer receives money upon an execution, the law prescribes his duty in relation to it. He is not bound to pay it over to the creditor until the return day of the execution. From his receipt of it until that day, it is not the creditor's money, but is in the custody of the law." Sewall, J. : " I consider the statute giving this process of for- eio-n attachment as a very beneficial one, and am therefore for applying a liberal construction to it. But there must be bounds to this liberality. In the case before us, an officer, in the execu- tion of a precept of the law, has received mone}', for which he is accountable to a third j)erson. An attempt is made to inter- rupt the execution of the precept, and to divert the money from the course which the law prescribed. If such practice should be permitted, great inconvenience and mischief would be the conse- quence." Sedgwick, J., after arriving at the conclusion that r. Freese, 1 Harrison, 305; Eeildick v. which an officer who collects money by Smith, 4 IlHnois (3 Scammon), 451. virtue of an execution, and does not "im- 1 Conant v. Bicknell, 1 D. Cliipnian, mediately pay tlie same to the party en- 50 ; Hurlburt v. Hicks, 17 Vermont, 193; titled thereto, or his attorney, on demand Lovejoy v. Lee, 35 Ibid. 430; Crane v. made," is liable to summary proceedings Freese, 1 Harrison, 305 ; Davis v. Ma- for tlie money, and heavy damages, it hany, 9 Vroom, 104 ; Conover v. Ruck- was held, that a constable could be gar- man, 33 New Jersey Equity, 303. nislied in respect of money he had col- 2 Adams v. Barrett, 2 New Hamp. 374. lected on execution. Burleson v. Milan, ' Woodbridge v. Morse, 5 New Hamp. 56 Mississippi, 390. 519. In Mississippi, under a statute by * Wilder v. Bailey, 3 Mass. 289. [441] § 506 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. the money was neither goods nor effects of the execution plain- tiff, thus proceeds : " Neither can this mone}^ in my opinion, be considered as a credit in the hands of the officer. There cannot be a credit without a creditor and debtor. There is nothing in the reason of the thing, resulting from the relation of a judg- ment creditor and an officer who has collected mone^'" for him, which renders the one a creditor, and the other a debtor. There is nothing said in any of the books, which implies that that rela- tion exists between them. On the contrary, money so collected is in the custody of the law, and the sheriff is the trustee for its safe-keeping. I confess that I should have been extremely sorry to have found that the attempt to charge the officer as the trustee of the judgment creditor could have been supported. If it could, a principle would have been established, that an execution, which has been justly called finis et fructus of legal pursuits might be eternally defeated. A judgment debtor would have had nothing more to do, when he had paid the money, than to engage a friend, who had, or who would pretend that he had, a demand against the creditor, and fix the money in the hands of the offi- cer, as long as there could be any pretence of keeping alive the suit; and when that could no longer be done, a new action might be instituted, and the same consequences ensue, and so on, ad infinitum. This might be done independently by the debtor, merely to gratify revenge ; it might be done by collusion between the officer and the debtor ; or it might be done even b}^ the offi- cer alone, to secure to himself the use of the money, which, from its amount, might vastly overbalance the trifling expenses which he would incur." Paesons, C. J., concurred with his associates upon substantially the same grounds. This case, it will be remarked, presented the question of gar- nishment of a sheriff before the return day of the execution. In a subsequent case, where the garnishment took place after the return of the execution, the same court affirmed and applied its previous decision.^ A later expression of the views of that court on this subject, was in a case where an officer, charged Avith the service of crim- inal process against a j^erson, arrested him, and, as incidental to the service of the process, took from him money and property found in his possession. The next day, benig satisfied that the 1 roUiird I', lloss, 5 Mass. 319. [442] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 508 prisoner had committed no crime, he went to the jail to return the money and property to him, and when about entering the jail, was summoned as garnishee of the prisoner. The question was, whether the officer was exempt from garnishment, under that clause of the statute which declared that no person should be adjudged a trustee "by reason of any money in his hands as a public officer, and for which he is accountable, merely as such offi- cer, to the principal defendant." The court held, that the money was taken by the officer in the performance of his official duty, and that, therefore, he could not be charged in respect thereof.^ " The doctrine settled in Massachusetts has been a]so established in Maryland, North Carolina, South Carolina, Alabama, Tennes- see, lUinois, Missouri, Wisconsin, and California, and incidentally recognized in Maine. ^ Viewed either as sustained by authority, or as resting on sound principles, it may properly be considered as settled. § 507. If money collected cannot be so reached, it follows, a fortiori, that a sheriff cannot be charged as garnishee in respect of an execution in his hands "upon which the money has not been collected.^ § 508. But though a sheriff holding money received in pay- ment of an execution, and which ought to be paid to the execu- tion creditor, cannot in respect thereof be garnished, yet there are other circumstances in which his official character affords him no protection from garnishment. In all the cases considered, the money Avas in the sheriff's hands virtute officii, and therefore in the custody of the law. But where money in his hands has ceased to be in such a position as to claim the protection of the law, he will be subject to garnishment, as any other person would be. Therefore, where a sheriff, holding an execution, sells prop- erty, and after satisfying the execution there is a surplus in his 1 Robinson r. Howard, 7 Gushing, 257 ; Humphreys, 132 ; Lightner v. Steinagel, Morris v. Pcnniman, 14 Gray, 220. 33 Illinois, 510 ; Marvin v. Hawley, 9 2 Farmers' Bank v. Beaston, 7 Gill & ^Missouri, 382 ; Clymer v. Willis, 3 Cali- Johnson, 421; Jones v. Jones, 1 Bland, fornia, 363; Staples v. Staples, 4 Maine, 443 ; Overton v. Hill, 1 Murphey, 47 ; Blair 532 ; Waite v. Osborne. 11 Ibid. 185 ; Hill r.Cantey,2 Speers, 34; Burrell v. Letson, v. La Crosse & M. R. R. Co., 14 Wiscon- Ibid. 378; 1 Strobhart, 239; Zurcher v. sin, 291. Magee, 2 Alabama, 253 ; Pawley i-. Gains, ^ Sharp v. Clark, 2 Mass. 91. 1 Tennessee, 208; Drane v. McGavock, 7 [443] § 509 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. hands, it is considered to belong to the defendant, and to be held by the sheriff in a private, and not in his official, capacity, and may, therefore, be reached by the defendant's creditors, either by direct attachment or by garnishment.^ The same rule extends to a receiptor, in whose hands the officer has placed attached property. If there is more than sufficient to satisfy the attachment, the receiptor may be charged as garnishee of the defendant in respect of the surplus.^ And where one who had been sheriff, received while in office a list of fees to collect for a register of a county, and made collections thereof, and after both he and the register had gone out of office he was summoned as garnishee of the latter, it was held, that the money collected by him was not in custodia ler/is, and that he was chargeable as garnishee in respect thereof.'^ And in Connecticut, where an ex- ecution commands the sheriff " that of the money of the said defendant, or of his goods, chattels, or lands, within your pre- cincts, you cause to be levied, and |;«it? and satisfied unto the plaintiff''' the judgment debt and costs, it was decided that this language, instead of the ordinary command to the officer to have the money in court, made him the agent of the plaintiff in its col- lection, and that he might be charged as garnishee of one for whom he had collected money on execution.* And in Wisconsin, a constable was charged as garnishee of a defendant in an attach- ment suit, where he had in his hands money derived from the sale under execution of property attached, and it appeared that the whole proceedings in the attachment suit were null and void, and so he could not pay over the money to the plaintiff therein.^ § 509. Clerks of Courts. The principles applied to admin- istrators, executors, guardians, and sheriffs, are applicable to clerks of courts, who frequently have money of others in their possession officially. It has been decided, that money paid into 1 Watson V. Todd, 5 Mass. 271 ; Orr v. Palmer, 2 Richardson Eq. 407 ; Hill v. V. McBryde, 2 Carolina Law Repository, Beacli, 1 Beasley, 31 ; Lovejoy i-. Lee, 2-57; King v. Moore, 6 Alaljama, IGO ; 35 Vermont, 430; Adams v. Lane, 38 Tucker I'. Atkinson, 1 Ilumplireys, 300; Ibid. 010. Davidson v. Clayland, 1 Harris & Joim- - Cole r. Wooster, 2 Conn. 203. son, 516; Jnquett v. Palmer, 2 Harriiig- ^ Robertson !'. Beall, 10 Maryland, 125. ton, 144; Wheeler t-. Smith, 11 Barbour, * New Haven Saw-Mill Co. v. Fowler, 345; Hearn v. Crutcher, 4 Yerger, 401; 28 Conn. 103. Pierce v. Carleton, 12 Illinois, 358; Liglit- ^ Storm v. Adams, 56 Wisconsin, 137. ner v, Steinagel, 33 Ibid. 510; Dickison [444] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 509 a the hands of a clerk on a judgment,^ money in the possession of a clerk in any manner in virtue of his office,^ and money paid into court,^ cannot be attached. But money in the hands of a clerk, arising from a sale of land in partition, which he has been or- dered by the court to pay over to the parties concerned, may, after such order, be attached.* And mone}^ deposited with a clerk, in lieu of a bond, on appeal from the judgment of his court, may be attached, so far as to hold the rights of the depositor therein, but not so as to interfere with the clerk's possession or control.^ If money in the official possession of a clerk cannot be reached by garnishment, much less can the service of an attachment on him have the effect of attaching orders made out by him on the county treasury, but undelivered to the party in whose favor they were drawn ; "^ or of attaching a judgment in favor of the attachment defendant, remaining of record in his court.''' And still less is the officer authorized to seize the record of the judgment. The only mode of reaching the judgment in such case is to summon the judgment debtor as garnishee.^ § 509 a. Receivers, Trustees of Courts^ and Trustees accou7itahle to Courts. Money in the hands of a receiver appointed by a court cannot be attached in his hands.^ In Georgia, this rule was applied to a case where the suit in which the receiver was appointed was terminated ; for he was accountable to the court, and the money, was, therefore, in custodia legis}'^ And so in Louisiana. ^^ And in Wisconsin the rule was applied, where the receiver had not yet reduced the property to actual possession. ^'-^ The rule is equally applicable to a trustee appointed by a court 1 Ross v. Clarke, 1 Dallas, 354 ; Alston ^ Merrell v. Campbell, 49 Wisconsin, V. Clay, 2 Haywood (N. C), 171. 535. 2 Hunt V. Stevens, 3 Iredell, 365 ; ^ Daley v. Cunningham, 3 Louisiana Drane v. McGavock, 7 Humphreys, 132. Annual, 55. 3 Farmers' Bank v. Beaston, 7 Gill & ^ Hanna v. Bry, 5 Louisiana Annual, Johnson, 421 ; Murrell ;;. Johnson, 3 Hill 651. (S. C), 12 ; Bowden v. Schatzell, Bailey 9 Glenn v. Gill, 2 Maryland, 1 ; Taylor Eq. 360. Sed contra, Phelan i'. Ganebin, v. Gillian, 23 Texas, 508; Tremper v. 5 Colorado, 14. Brooks, 40 Michigan, 333. * Gaither v. Ballew, 4 Jones, 488. i* Field v. Jones, 11 Georgia, 413. 6 Dunlop V. Paterson F. I. Co., 19 New " Nelson i-. Connor, G Robinson (La.), York Supreme Court, 627 ; 74 New York, 3.39. 145. But see Pace v. Smith, 57 Texas, i'-^ Hagedon v. Bank of ^Visconsin, 1 555. Pinney, 61. [445] § 509 a CAPACITY m WHICH GARNISHEE [CHAP. XXII. of chancery ; ^ to a trustee holding property which by the terms of the trust, is to be disposed of b}^ the order of a court ;2 and to a master in chancery holding property under and subject to such order.3 But this rule is subject to this qualification, — that if the right of the attachment defendant to money held by a trustee, receiver, or other agent of a court, has been so fixed as to entitle him to receive it without further judicial action, the trustee, receiver, or agent may be charged as garnishee in respect thereof. Thus, a trustee appointed in an equity suit to sell real estate, and who has sold it, and has in his hands a balance due to one of the par- ties to the suit, may be charged as garnishee in respect of such balance.^ And in Alabama, the court went further, and charged a register of a court of chancery as garnishee, in respect of a sur- plus of money belonging to a defendant, after a sale of property to satisfy a mortgage decree, although the sale had not been con- firmed, and he was directed by the decree to report his doings at the next term of the court.^ And in Maryland, the Court of Appeals, referring to previous cases in that court, said : " We do not, however, understand from these cases that an attachment cannot be issued and laid in the hands of a trustee before a final account, and that it would not be effective upon a sum ascertained by such an account to be the distributive share of the debtor in the attachment ; but that the process, before the account is stated, cannot affect the fund or the trustee, or compel any mod- ification of the final account, for the benefit of the attaching creditor."^ Whatever doubt may exist in any such case as to charging a receiver, trustee, or other agent of a court, before the court has ordered him to pay over money to the attachment defendant, there is no doubt that it may be done after such an order has been made.'^ And so, after the proceedings are terminated in the cause, and 1 Bentlcy v. Shrieve, 4 Maryland Ch'y ^ McPIicrsnn v. Snowden, 19 ^lary- Decisions, 412. land, 197. See Groome v. Lewis, 23 Ibid. 2 Cockcy V. Leister, 12 Maryland, 124. V-Ti. 8 McKenzie v. Noble, 13 Richardson, '' Weaver v. Davis, 47 Illinois, 235; 147. Williams v. Jones, 38 Marjdand, 655. * Van Eiswick v. Lamon, 2 Mac Ar- And see ante, § 4'J7 for analogous rulings thur, 172. in the case of an administrator. fi Langdon v. Lockett, Alabama, 727. [446] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 511 a sum remains in the hands of the receiver or trustee, payable to the attachment defendant.^ And where a receiver of a raih'oad, which was run in connec- tion wath another raih'oad, collected freights due the latter, he was charged as its garnishee in respect thereof; the same not having been earned by the property of the receivership, and there- fore not subject to the control of the court which appointed the receiver.^ § 510. Justices of the Peace. In some States, it is the practice for money collected by a constable on an execution issued by a justice of the peace, to be paid into the hands of the justice. It would seem to follow, from the numerous decisions previously considered, that such an officer could not be garnished in respect of money so received, and in Pennsylvania it has been so held.^ But in Alabama, it was decided otherwise, on the ground (pecu- liar to their sj^stem of laws) that the justice is not merely a judi- cial officer in relation to the collection of small debts, but the agent of the person who intrusts their collection with him ; and that as soon as the money is collected, his character as a magis- trate ceases, and he holds it as any other agent.'* § 511. Trustees of Insolvents^ and Assignees in Banhruptcy. In Massachusetts, it has been decided that effects in the hands of an assignee of a bankrupt cannot be reached by garnishment, as they are not the effects of the bankrupt, but are by law vested in the assignee.^ Upon the same ground, and also because the attach- ment, under such circumstances, of the effects of a bankrupt or insolvent would utterly defeat the whole policy of the bankrupt or insolvent laws, the same decision has been made in Maryland, with regard to assignees in bankruptcy and trustees of insolvent debtors.*^ In the former State, however, this exemption of assignees in bankruptcy was at one time held to extend only to cases where it was sought to reach the bankrupt's effects to 1 Willard v. Decatur, 59 New Hamp. 3 Corbyn v. Bollman, 4 Watts & Ser- 137. geant, 342. 2 First Nat. Bk. v. P. & 0. R. Co., 2 ^ Clark v. Boggs, 6 Alabama, 809. Federal Reporter, 831. See Gould v. ^ Oliver v. Smith, 5 Mass. 183. Newburyport R. Co., 14 Gray, 472 ; Bow- 6 Farmers' Bank v. Beaston, 7 Gill & ler V. European & N. A. R. Co., 67 Maine, Johnson, 421. See Torrens v. Hammond, 395. 10 Federal Reporter, 900. [447] § 512 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. subject them to the payment of his debts. Therefore, where an assignee was garnished in an action against a creditor of the bankrui:)t, to whom a dividend of the bankrupt's estate was due, he was charged as garnishee.^ It does not, however, appear that the question was raised whether an officer of this kind was ex- empted by his official character from the operation of this process. But recently the Suj^reme Court of that State overruled the cases just cited, and held that an assignee under the insolvent law, having money in his hands, pa3'able to the defendant as a cred- itor of the insolvent, could not be charged as garnishee in respect thereof.^ In the course of the administration of the Bankruptcy Act of 1867, this matter came up several times, and it was decided that money in the hands of an assignee in bankruptcj', which he had been ordered to pay to the bankrupt's creditors, could not be reached by garnishment of the assignee ; ^ and the same rule was applied to money payable to a creditor under a composition resolution.^ § 512. Bishursing Officers. We have seen that a county treas- urer could not be charged as garnishee, in respect of a sum of money due to the defendant from the county, and which it was the treasurer's duty to pay.^ A similar case arose in Kentucky, where it was ruled, that money which a county court had ordered the sheriff to pay to the jailer of the county for his ser- vices as such, could not be attached in the hands of the sheriff.^ And afterwards, in the same State, it was held that money in the hands of a public officer, as compensation due from the State to a public school-teacher, was not subject to attachment." And in Illinois, it was held, that a treasurer of a city could not be charged as garnishee, on account of salarv due from the city to an employee, though tlie account therefor had been audited, and the treasurer had the money in his hands to pay it ;^ and also that neither the treasurer nor the directors of a school 1 Jones V. Gorham, 2 Mass. 375 ; De- * In re Kohlsaat, 18 Nat. Bankruptcy coster V. Livermore, 4 Ibid. 101. Register. 570. 2 Colby V. Coates, 6 dishing, 558; ^ ^l„/e, § 40-3. Dewing v. Wentworth, 11 Ibid. 409. " Webb v. iMcCaulcy, 4 Bush, 8. 3 In re Biidgman, 2 Nat. Bankruptcy ' Allen v. Russell, 78 Kentucky, 105. Register, 252 ; In re Cunningham, 19 Ibiil. ^ Triebel v. Colburn, G4 Illinois, 37G. 270 ; In re Chisolm, 4 Tederal Reporter, 52G. [448] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 512 district could be charged as garnishee on account of money due to a teacher.i The Supreme Court of the United States settled the same rule with regard to all governmental disbursing officers. The U. S. Frigate Constitution returned from a cruise, and several writs of attachment were issued by a justice of the peace, against seamen of the frigate, under which the purser of the ship was garnished. The purser admitted before the justice having money in his hands due to the defendants, but contended that he was not amenable to the process. Judgment was, how- ever, given against him, and, on appeal to the Superior Court of the county, was affirmed. The case went thence to the Supreme Court of the United States, which tribunal reversed the judg- ment, and in doing so used the following language : " The important question is, whether the money in the hands of the purser, though due to the seamen for wages, was attachable. A purser, it would seem, cannot, in this respect, be distinguished from any other disbursing agent of the government. If the creditors of these seamen may, by process of attachment, divert the public money from its legitimate and appropriate object, the same thing may be done as regards the pay of our officers and men of the army and of the navy ; and also in every other case where the public funds may be placed in the hands of an agent for disbursement. To state such a principle is to refute it. No government can sanction it. At all times it would be found embarrassing, and under some circumstances it might prove fatal to the public service. The funds of the government are specifi- cally appropriated to certain national objects, and if such apjpro- priations may be diverted and defeated by State process or otherwise^ the functions of the government may be suspended. So long as money remains in the hands of a disbursing officer, it is as much the money of the United States, as if it had not been drawn from the treasury. Until paid over by the agent of the government to the person entitled to it, the fund cannot, in any legal sense, be considered a part of his effects. The purser is not the debtor of the seamen." ^ 1 Millison v. Fisk, 43 Illinois, 112; rinston, 11 Pick. 2G0 ; Mechanics and Bivens v. Harper, 59 Ibid. 21. Traders' Bank v. Hodge, 3 Robinson 2 Buchanan v. Alexander, 4 Howard, (La.), 373; 5 Opinions of U. S. Attor- Sup. Ct. 20. See AveriU r. Tucker, 2 neys-General, 759; 10 Ibid. 120. Cranch C. C. 514 ; Clark v. Great Bar- . 29 [449] § 515 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. § 513. But, where the garnishee, though acting under public authority, is not a public officer, but merely an agent for a par- ticular purpose, a distinction has been made. Thus, where a town in New Hampshire (in pursuance of a law authorizing the several towns to make a disposition of the public money deposited with them, in such manner as each town should by major vote determine) voted to distribute it " to the inhabitants of the town 'per capita,''' according to a census to be taken, and appointed an agent to make the distribution, the agent was charged as garnishee of one of the inhabitants in respect of his distributive share.^ § 514. The position taken by the Supreme Court of the United States, that the money, while in the hands of the disbursing offi- cer, though delivered to him for the purpose of being paid to the defendant, is still the money of the government, applies as well to all cases where an agent has, without any privity between him and the defendant, received from his principal money to be paid to the defendant, but which he has not yet paid, or agreed with the defendant to pay to him. There, any attempt, in a proceeding against the party to whom the money is to be paid, to reach it by garnishment of the agent, will be unavailing ; for he is not the debtor of the defendant, nor is the money in his hands the defendant's, but the principal's. The onl}^ way to reach it is by garnishment of the principal.^ The case is different, however, where the money is collected for the defendant by his agent. There, the agent is in direct privity with the defendant, and the money in his hands is the defendant's, and he may be charged as garnishee in respect thereof.^ § 515. Attorneys at Law. It seems to be generally conceded that persons practising as attorneys at law, and holding money of their clients, are not protected by their legal capacity from gar- nishment, but are considered liable in respect of money so held by them, even though their clients could maintain no action against them for the money until the payment of it should have been demanded.* • Wendell v. Pierce, 13 New Hamp. 4 Wisconsin, 91. See Casey v. Davis, 502. 100 Mass. 124. 2 Neuer v. O'Fallon, IS Missouri, 277 ; 3 Kennedy v. Aldridge, 5 B. Monroe, Bripgs V. Block, Ihid. 281 ; Barnard v. 141. Graves, 16 Pick. 41; Huntley v. Stone, * Staples v. Staples, 4 Maine, 532; [450] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 516 § 516. 3Iunicipal Corporations. The liability of these bodies to o-arnishment has been differently regarded in different States. In New Hampshire, under a statute extending the operation of an attachment to " any corporation possessed of any money," &c., of the debtor, it was held that a toivn might be garnished.^ In Connecticut, where the statute provides that " debts due from any person to a debtor," may be attached, the same view was entertained as to the same description of corporation ; ^ though in that State it had been previously held that a county could not be charged as garnishee.^ This decision, however, was stated to have rested on the position that a county could not contract a debt for which an action would lie against it, and was held not to be inconsistent with the views which controlled the court in sustaining the garnishment of a town.* In Massachusetts, under a statute providing that " any person or corporation may be sum- moned as trustee of the defendant," it was held, that a county might be garnished in respect of compensation due to a messen- ger in charge of its court-house, under appointment of the county commissioners, at a fixed salary ; the compensation being due by contract, and the law of that State declaring that each county "shall continue a body politic and corporate for the following purposes : to sue and be sued, . . . and to make necessary con- tracts, and do necessary acts in relation to the property and concerns of the county."^ In Iowa, an incorporated city was charged as garnishee, for money due to a defendant for public work done by him for the city ; ^ but, after this, the Code of that State was amended so as to provide that " a municipal corpora- tion shall not be garnished." Notwithstanding this provision, an Woodbridge v. Morse, 5 New Hamp. 519 ; tion, it was held, that a sum due from a Coburn v. Ansart, 3 Mass. ol9 ; Thayer city to one of its officers might be decreed V. Sherman, 12 Ibid. 441 ; Riley v. Hirst, to be paid to the creditor, where the 2 Penn. State, o46 ; Mann v. Buford, 3 amount had, by the city authorities, been Alabama, 312 ; Tucker v. Butts, 6 Geor- ordered to be paid to tlie officer, and was, gia, 580. when the bill was filed, subject imme- 1 Whidden r\ Drake, 5 New Hamp. 13. diately to his demand. Speed v. Brown, 2 Bray v. Wallingford, 20 Conn. 416. 10 B.' Monroe, 108. And in Missouri a 3 "Ward V. Hartford, 12 Conn. 404. bill in equity was sustained against an * Bray v. Wallingford, 20 Conn. 416. absconded debtor, and money in a city 5 Adams v. Tyler, 121 Mass. .380. treasury was subjected to the payment 8 "Wales V. Muscatine, 4 Iowa, 302. of his debt ; though in the attachment In Kentucky, in a proceeding in chan- law the garnishment of a municipal cor- cery in favor of a judgment creditor, who poratlon was expressly prohibited. Pen- could not make his judgment by execu- dleton v. Perkins, 49 Missouri, 565. [451] § 516 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. attempt was made to garnish a township, on the ground that the prohibition was not intended to exempt such corporations from garnishment in all cases, but only to an extent sufficient to protect them against embarrassment in the execution of their political, civil, or corporate duties ; but the court rejected this construction.^ In Rhode Island, under a statute authorizing all corporations, unless otherwise provided, to sue and be sued, and be garnished, a city was charged as garnishee on account of money due from it to a member of its police force.^ In Vermont, on the contrary, it was held, that a town Avas not subject to garnishment ; ^ in Pennsylvania, Maryland, Georgia, Alabama, Tennessee, Missouri, Wi:?consin, Nebraska, and Illinois, that a city could not be charged as garnishee ; * in Pennsylvania, that a borough could not be ; ^ in Minnesota, Arkansas, Colorado, Indiana, and Nebraska, that a county cannot be garnished ; ^ in Alabama, that incorporated commissioners of public schools were a public or municipal corporation, and could not be garnished ; "^ and in the District of Columbia, that the District cannot be charged as garnishee of one of its officers on account of salary due him.^ Thus the question stands, so far as the adjudications are concerned. The argument in favor of holding such bodies as garnishees is derived from the policy of the law which subjects all of a debtor's property to the payment of his debts ; while the adverse argument is based on the inconvenience and impolicy of interfering with the operations of municipal bodies, by drawing them into controversies in which they have no concern, and diverting the public moneys from the channel in 1 Jenks V. Osceola Township, 45 Iowa, 45 Illinois, 133 ; People v. Omaha, 2 554. Nebraska, IGG. 2 Wilson V. Lewis, 10 Rhode Island, ^ Van Volkenburgh v. Earley, 9 Lu- 285. zerno Legal Register, 257 ; 1 Chester 8 Bradlcyr. Richmond, 6 Vermont, 121. County, 100. * Eric V. Knapp, 20 Penn. State, 173; *^ McDougal v. Hennepin County, 4 Greer v. Rowley, 1 Pittsburgh, 1 ; Balti- Minnesota, 184 ; Boone County v. Keck, more r. Root, 8 Maryland, 95; IMcCiellan 31 Arkansas, 387; Commissioners v. V. Young, 54 Georgia, 390; Mobile v. Bond, 3 Colorado, 411 ; Wallace v. Law- Rowland, 26 Alabama, 408 ; Parsons v. yor, 54 Iniliana, 501 ; State v. Eberly, 12 McGavock, 2 Tennessee Cli'y, 581 ; Mem- Nebraska, C16. phis I'. Laski, n Ileiskell, 511 ; Hawthorn " Clark i\ Mobile School Com'rs, 36 V. St. Louis, 11 Missouri, 50; Fortune v. Alabama, 621. St. Louis, 23 Ibid. 2.39 ; Burnham v. Fond « Derr y. Lubey, 1 MacArthur. 187; du Lac, 15 Wisconsin, 103 ; Buffham r. Pottier & S. Man. Co. i;. Taylor, 3 Ibid. Racine, 26 Ibid. 440 ; Mcrrell v. Camp- 4 ; Brown v. Fioley, Ibid. 77. bell, 49 Ibid. 535 ; Merwin v. Chicago, [452] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 516 a which by the acts or ordinances of the corporation they are required to flow. The weight of authority is manifestlj' against the proceeding, so far as inferior municipal organizations are concerned. In this connection may properly be mentioned a case which arose in Louisiana, where it was attempted to subject to attach- ment taxes due from individuals to a municipal corporation. On high principles of public policy, it was, in a learned and elab- orate opinion, held that the proceeding was unauthorized and inadmissible.^ And it was so ruled in Tennessee, where the taxes were in the hands of the collector.^ And so in Alabama, where a note had been given to the city of Mobile for taxes, and a judgment had been recovered on the note ; after which the judgment debtor was garnished.^ § 51G a. Every consideration adverse to subjecting a municipal corporation to garnishment, operates with greatly increased force against the garnishment of one of the United States. Of course, no State can be sued without its own consent, signified by its own statute law.* As we have seen,^ garnishment is a suit. Therefore a State cannot be garnished without its own consent, so signified. This consent is not signified by the insertion in the State's constitution of a requirement upon the legislature to direct, by law, in what courts and in what manner suits might be commenced against the State ; but such law must be enacted. And even where a State has provided by law for itself being sued, it cannot be charged as garnishee of one of its ofiicers, in respect of the salary due him.^ And this was so held in Georgia, as to the superintendent of a railroad which was owned entirely by the State ; notwithstanding the legislature had by law authorized suits for damages to be instituted against the road, and prescribed how process should be served upon it.' And parties will not be allowed to evade the inhibition of suing a State, by ignoring the State in their suit, and proceeding directly against the public 1 Egerton v. Third Municipality, 1 * Briscoe v. Bank, 11 Peters, 259 ; Louisiana Annual, 435. Beers v. Arkansas, 20 Howard, Sup. Ct. - Moore v. Chattanooga, 8 Helskell, 527. 850. 5 Ante, § 452. 3 Underhill v. Calhoun, 63 Alabama, '' McMeekin v. State, 9 Arkansas, 553. 216, overruling Snioot v. Hart, 33 Ala- ' Dobbins v. 0. & A. E. R. Co., 37 bama, 69. Georgia, 240. [453] § 516 h CAPACITY IN WHICH GARNISHEE [CHAP. XXII, officer having the custody of the money sought to be reached .^ Thus, it was attempted, in Tennessee, to reach the sahiry of the State Treasurer, by garnishment in chancery of the State Comp- troller, whose official duty it was to issue his warrant for the salary ; ^ and in Kentucky, to reach the salary due from the State to a public-school teacher, by garnishment of the school commis- sioner, whose duty it was to pay the teacher ; ^ and it was held that such proceedings were not admissible. And the same view was taken in Virginia and Tennessee, when it was sought, in the former, by garnishment of the State Treasurer, and in the latter the State Comptroller, to subject to attachment certain bonds deposited with the State by a foreign insurance company, to enable it to do business there ; ^ and in Kentucky and Louisiana, when it was attempted, by garnisliing the State Auditor and Treasurer, to attach certain money ordered by the legislature to be paid to an individual.^ Clearly, then, the absolute immunity of a State from garnishment, direct or indirect, unless with its own consent, expressed by law, must be considered as completely established. This doctrine was applied in Georgia, in a case where it was sought, through process issued out of a court of that State, while in insurrection against the United States, to charge an agent of the Confederate States, in garnishment, as a debtor of the Bank of Louisiana, on the ground that he had in his possession a certain amount of gold coin, which that bank, in order to save it from capture by the United States, had sent from New Orleans to Georgia, where it was seized by the Confederate authorities, and by them placed in the garnishee's hands, as agent. As those authorities were a de facto government, though illegal, it was held, that the rule applied, and that the agent could not be charged in respeptof the gold coin which was, when he was garnished, in his hands.^ § 516 h. Though a municipal corporation be, by express law, exempt from garnishment, it may waive the exemption, and sub- 1 Tracy v. Hornbuckle, 8 Bush, 330 ; S. S. Co. v. Virginia F. & M. Ins. Co., 20 Dewey y. Garvey, 130 Mass. 86. Blatchford, 405; 11 Federal Reporter, 2 Bank of Tennessee v. Dibrell, 3 284. Snecd, 379. ^ Divine v. Harvey, 7 Monroe, 439 ; 3 Tracy v. Hornbuckle, 8 Bush, 336. Wild v. Ferguson, 23 Louisiana Annual, < Rollo V. Andes Ins. Co., 23 Grattnn, 752. See Spalding v. Inilay, 1 Root, 551. 509 ; Pennebaker v. Tonilinson, 1 Ten- ^ Wilson v. Bank of Louisiana, 55 nessee Cli'y. HI- See Providence & Georgia, 98. [454] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 516 h mit itself to liability as garnishee. And where it appears and answers without claiming the exemption, and at the trial of the question of its indebtedness to the defendant, it raises, for the first time, the question of its exemption, it will be held to be estopped from that defence.^ But unless it appear and waive the exemption, no judgment can be given against it. Thus, where the attempt was made to garnish a county, and the county clerk answered the interrogatories, but no appearance was entered on behalf of the county, the judgment entered against it was held erroneous.^ 1 Clapp V. Davis, 25 Iowa, 315. 2 Commissioners v. Bond, 3 Colorado, 411. [455] 517 garnishee's liability [chap. xxni. CHAPTER XXIII. THE garnishee's LIABILITY, AS AFFECTED BY PREVIOUS CON- TRACTS TOUCHING THE DEFENDANT'S PROPERTY IN HIS HANDS. § 517. The liability of a garnishee in respect of property of a defendant in his hands, is to be determined ordinarily by his accountability to the defendant on account of the property. If, by any pre-existing bond fide contract, that accountability have been removed, or modified, it follows that the garnishee's liability is correspondingly affected. For it is well settled that garnish- ment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person. Any other doctrine would lead to mischievous results.^ Therefore, where goods were shipped by the defendant to the garnishee, and a bill of exchange was drawn on the garnishee, which, before the goods were received, was presented, and he re- 1 Tlie doctrine thus stated was cited, monthly, the balances being always in in terms, and adopted by the Court of favor of the Baltimore & Ohio Company. Appeals of Maryland, in Baltimore & Tiie court held, that under such circum- Ohio R. R. Co. I'. Wheeler, 18 Maryland, stances, moneys received by that com- 372, where it was attempted to cliarge pany for the other were not subject to that company as garnishee, in respect of attachment, unless, upon a settlement of moneys received by it on account of the accounts between them, there should be Central Ohio Railroad Company. The found a balance in favor of tlie latter; roads of these two companies terminated and while tlie arrangement existed be- opposite to eacli other on the banks of tween tiiem, as stated, it could not be the Ohio River, and an arrangement e.x- broken up by an intervening attachment, isted between the two companies for The same doctrine, in ellect, was i)revi- " through " transportation of goods and ously enforced by the same court, in Poe passengers, by tiie transfer thereof from v. St. Mary's College, 4 Gill, 4U9. See one road to the other; each company Troxall r. Api)legarth, 24 Maryland, 163; receiving the fare or toll due for the other Harris v. Phoenix Ins. Co., 35 Coiui. 310 ; over both roads. In tiiis way there were Chapin v. Jackson, 45 Indiana, 153 ; mutual accounts to be settled between O'Brien v. Collins, 124 Mass. 98; Wart the companies, fcjj- the receipts of each v. Mann, Ibid. 586. on the other's behalf ; which were settled [456] CHAP. XXIII.] AS AFFECTED BY PEEVIOUS CONTRACTS. § 517 fused to accept it, and it was returned to the drawers ; and soon afterwards the goods arrived, and the garnishee called on the per- sons who had presented the bill to him, and told them if they would get the bill back he would pay it ; and after this promise he was summoned as garnishee of the shippers of the goods, and in his answer admitted the possession of the defendant's goods, but set up his promise to pay the bill ; the promise was held to be bind- ing on him, and to give him a lien on the goods, in virtue of which he was entitled to retain them for his indemnity.^ So, where the garnishee had goods of the defendant in his hands on consign- ment, and, at the defendant's request, agreed to pay to a third person the amount of a bill of exchange of the defendant which had been protested, and which that third person had accepted for the honor of one of the indorsers thereon ; and after making this agreement he was garnished ; it was held, that his agreement was bindins: on him, and that he was entitled to retain out of the proceeds of the goods the amount of the bill which he had under- taken to pay .2 So, where A. delivered goods to B., with direc- tions to sell the same on his arrival in New Orleans, and pay the proceeds to C, D., and E., to extinguish, as far as they would go, a debt he owed them. On his arrival in New Orleans, B. placed the goods in the hands of C, D., and E., to sell, informing them of A.'s directions, and that, in conformity thereto, he would pay over the proceeds to them ; to which they assented. Before the goods were sold they were attached by a third party as the prop- erty of A. ; and it was held, that they were not subject to such attachment, because the promise of B. to C, D., and E. bound him to pay the proceeds to them, and A. could not, by a change of his determination, have compelled him to pay the money to any other person.^ So, where the garnishee had, before the gar- nishment, in a transaction with the defendant, purchased from him goods, under an agreement, that, in consideration of the sale of the goods to him, he would pay off a mortgage on land which the defendant had previously executed, which he did pay after the garnishment ; it was decided, that as the defendant could not lawfully, by any interference, prevent the garnishee from taking up the mortgage, so neither could the plaintiff by 1 Grant v. Shay, 16 Mass. 341. 667 ; Cutters v. Baker, 2 Louisiana An- 2 Curtis u. Norris, 8 Pick. 280. nual, 272; Oliver v. Lake, 3 Ibid. 78; 8 Armor v. Cockburn, 4 Martin, n. s. Burnside v. McKinley, 12 Ibid. 505. [457] § 517 garnishee's liability [chap. XXIII. the operation of the attachment.^ So, where the garnishee had received for the defendant an order on a town treasury for a cer- tain sum, having previous to its receipt agreed with the defendant and a third person to whom the defendant was indebted, to de- liver the order, when received, to that third person, and imme- diately after receiving the order he was garnished ; the court held, that he was bound to deliver it according to his promise, and that the garnishment did not relieve him from that obligation.^ So, where the garnishee had, previous to the garnishment, received from the defendant a sum of money and a note, in consideration whereof he agreed to enter a tract of land at the land-office for the defendant, and in pursuance of that agreement he had filed a land-warrant in said office, to be located for the defendant; and pending some delay in making the location, he was summoned as garnishee of the party from whom he had received the money, and thereupon desisted from any further effort to have the loca- tion made ; it was held, that he could not be charged. ^ So, where a garnishee disclosed that certain creditors of the defendants having attached their property, it was, after the attachment, in pursuance of a written agreement, signed by the plaintiffs, the defendants, and the garnishee, put into the garnishee's hands to sell, and apply the proceeds to the satisfaction of the executions that might be recovered, in the order of the attachments ; and after the agreement was made, but before the property came into his hands, he was garnished ; and after the garnishment he re- ceived the property and disposed of it according to the agreement : the garnishee was not charged ; the court considering that the garnishment " did not relieve him of his obligation to perform the contract into which he had entered. He received property of the defendants, it is true, but it was upon the express trust to dispose of it and discharge the liens upon it. He was, therefore, the agent of the creditors, to sell the property and account for the proceeds to them, with the assent of the defendants." * So, where a garnishee admitted the possession of a promissory note payable to the defendant, but alleged that the note had been given to him for the purpose of paying a certain judgment on which he was security for the defendant for a stay of execution ; he was 1 Owen V. Estes, 6 Mass. 330. ^ Lundie v. Bradford, 20 Alabama, 512. 2 Mayhew v. Scott, 10 Pick. 64. * Collins v. Brigham, 11 New Hamp. 420. [458] CHAP. XXIII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 517 a held not chargeable in respect to the note.^ So, where money in the garnishee's hands was deposited with him by the defendant as security for his becoming the defendant's bail.^ So, where the funds in the garnishee's hands were held by him under an agreement with the defendant, in trust to defray the expenses of certain suits in jvhich the latter was involved, and for which the garnishee had incurred liability to the full extent of the funds.^ But where a garnishee resisted liability on account of money of the defendant in his hands, u[)on the ground that he had signed certain appeal bonds as security for the defendant, upon which he had been sued, and judgment obtained against him; but he failed to state the time of his signing the bonds; and it therefore did not appear but that they might have been signed aftar he was garnished ; his liability was held not to be discharged.* In Georgia, goods were deposited with a warehouseman, who gave a receipt therefor, engaging to deliver them to the holder of the receipt ; and he was summoned as garnishee of the party who made the deposit ; and after the garnishment he delivered the goods to a third party holding the receipt, to whom they had been sold after that event ; and attempted to avoid liability as garnishee, on the ground that his receipt was a negotiable instrument, and bound him to deliver the goods to anybody to whom it might be transferred: but the court held, that the receipt was merely evidence of a contract of bailment, and not to be regarded as a negotiable security, and that the delivery of the goods by the garnishee, after the garnishment, was in his own wrong, and did not discharge him from liability .^ § 517 a. In all cases of the descriptions referred to in the next preceding section it will, of course, be understood, that the gar- nishee's exemption from liability goes only to the extent of the requirements of the contract under which he holds the property. If, after meeting all those requirements, there is a balance in his hands, he may be charged in respect thereof. ^ 1 Dryden v. Adams, 29 Iowa, 195. * McCoy v. Williams, 6 Illinois (1 Gil- 2 Ellis V. Goodnow, 40 Vermont, 237. man), 584 ; Grain r. Gould, 46 Ibid. 2-39. 8 Truitt V. Griffin, 61 Illinois, 26. s Smith v. Picket, 7 Georgia, 104. 6 Davis V. Wilson, 52 Iowa, 187. [459] § 518 garnishee's liability [chap. XXIII. § 518. In some States, statutory authority is given for the garnishment of one who is bound by contract to deliver goods or chattels to the defendant ; and for the delivery of the goods, in such case, by the garnishee to the officer holding the execution, in discharge of the garnishee's liability. In Massachusetts, the statute provided that " when any person is chargeable as a trustee, by reason of any goods or chattels, other than money, which he holds, or is bound to deliver to the principal defendant, he shall deliver the same, or so much thereof as may be neces- sar}^ to the officer who holds the execution, and the goods shall be sold by the officer," &c. ; and the statute further provided that " when any person, who is summoned as trustee, is bound by con- tract, to deliver any specific goods to the principal defendant, at any certain time and place, he shall not be compelled, by reason of the foreign attachment, to deliver them at any other time or phice." Under this statute one was garnished, who had pur- chased from the defendant a building, on condition, as expressed in the bill of sale, that he should " pay for the building in writing- paper at market price, delivered in New York in a reasonable time after he shall receive the order for the same." The court decided that as the goods were to be dehvered to the defendant at a place out of that State, to which the officer had no authority, as officer, to go and receive the goods, the law did not apply.i Here, it will be observed, the garnishee had not in his hands any goods or effects of the defendant ; his obligation was to deliver goods at New York, which would not become the defendant's property until delivered to him. It was, therefore, distinguisha- ble from a subsequent case, in the same State, of the garnishment of an express company in Boston, which had in its hands in transitu a package of money which, as a common carrier, it had agreed to dehver to tlie defendant at Norwich, Connecticut. The court decided that there was no reason why a common car- rier should not be subjected to liability as a garnishee, and that, as the garnishee had money of the defendant in its hands in that State, it was chargeable, though the money was deliverable in another State.^ In Illinois, however, it was held, tliat a railroad company could not be charged as garnishee in respect of prop- erty which it was transporting, and lohich was not at the time of the garnishment in the county where the writ issued ; and the court 1 Clark V. Rrower, G Gray, 320. ^ Adams v. Scott, 104 Mass. 164. [460] CHAP. XXIII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 518 expressed grave doubts as to the liability of such a company m such a case under any circumstances.^ In the same State, an attempt was made to charge one railroad company as garnishee of another railroad company, simply because, at the time of and after the garnishment, the former had in its possession certain box cars and flat cars belonging to the latter ; which were received under running arrangements existing between the two companies as connecting lines, such as are usually adopted by connecting lines throughout the country ; whereby, instead of unloading and transferring their freight from the cars of one com- pany to the cars of the other at the point of connection, each re- ceived from the other the cars loaded with freight, and hauled them to the place of destination on its own line of road, and after discharging the freight, returned the cars as soon as practicable in due course of business. The court held that the same considera- tions wliich exempt public ofiicers and agents, in the discharge of their official duties, from garnishment, aj^plied to common car- riers, whenever garnishment would manifestly and necessarily interfere with the proper discharge, on the part of the carrier, of its public duties and functions ; that in a case such as that in hand, garnishment would, beyond doubt, very seriously interfere with the transportation of freights by railroad, according to the method which experience had developed as the speediest, most economical, and best ; and that such an interference was so far in conflict with sound public policy, as to warrant the court in hold- ing that the garnished company was not chargeable as garnishee on account of its possession of the cars of the defendant com- pany, under the circumstances of that case.^ In Georgia it was held, that the garnishment of a raih'oad company, chartered in Alabama, served on its local agent in Georgia, did not bind the company as to the trunk of a passenger which was, at the time of the service, en route with the passenger in Alabama, though it was afterwards brought into Georgia over the company's road from one point to another in that State.^ , In Michigan it was held, that a railroad company could not be charged as garnishee of a consignee of goods which, as a com- 1 Illinois C. R. R. Co. v. Cobb, 48 Illi- ^ Western Railroad v. Thornton, 60 nois, 402. Georgia, 300. 2 Michigan C. R. Co. v. Cliicago & M. L. S. R. Co., 1 Brn dwell, 399. [461] I 520 gaknishee's liability [chap, xxiii. mon carrier, it was transporting, when it did not appear that the goods belonged to the consignee.^ § 519. The contract in relation to the effects in the garnishee's hands, which will affect his liability, must not only have been entered into before the garnishment, but it must be his contract, and not that of another. Thus, A. sued B., and summoned C. as garnishee ; and at the time of instituting the suit, an agree- ment was entered into between A. and B., as to the disposition which should be made of the funds in the garnishee's hands, when recovered. C, having knowledge of the terms of that agreement, without waiting for the action of the court as to his liability as garnishee, paid over the money in his hands to the persons to whom, by the agreement, it was to be paid when recovered, and set up this payment as a discharge of his liability as a garnishee. The court held, 1. That the contract between A. and B. was executory, and to operate only when the funds should be recovered from the garnishee ; and 2. That the pay- ment was unauthorized, and could not operate to discharge the garnishee ; and he was accordingly charged.^ § 520. A case occurred in New Hampshire, where A. and B. made a wager on the result of a Presidential election, and depos- ited the money in the hands of C, to be held by him until the 4th of March, 1841, on which day, in one event of the election, both sums were to be paid to A., and in the other event, to B. In December, 1840, C. was summoned as garnishee of A., and the question was, whether the money in his hands received from A., could be subjected to the attachment, notwithstanding the agreement of waffer. The court mooted, but did not deem it necessary to decide, the question of the legality of the wager ; and held, that a creditor of A. could not interfere with the agree- ment by taking the money out of the hands of C, without A.'s consent, unless A. was in insolvent or embarrassed circumstances.^ The doctrine here advanced can hardly be deemed consistent with public policy and sound morals. The better view is that taken in INIassachusetts, holding all wagers on the result of popu- 1 Walkor v. Detroit, G. II., & M. K. » Clark v. Gibson, 12 New Ilamp. 386. Co., 40 Michigan, 446. See Wimer v. Pritchartt, 16 Missouri, 2 Webster v. Kandall, 19 Pick. 13. 252. [4G2] CHAP. XXIII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 520 lar elections null and void, and the money in the hands of the stake-holder a mere naked deposit, respecting which the agree- ment to pay it over to one, according to the result of the pending election, is inoperative and void ; and that, by implication of law, the money is deposited to the use of the depositors respectively, and the share of each is subject to attachment for his debts, at any time before it is actually paid over to the winning party .^ After it is paid over, however, the winner cannot be charged as garnishee of the loser in respect thereof.^ 1 Ball V. Gilbert, 12 Metcalf, 397. See ^ Speise v. McCoy, 6 Watts & Sargeant, Eeynolds v. McKinney, 4 Kansas, 94. 482. [463] § 523 garnishee's liability as affected [chap. XXIV. CHAPTER XXIV. THE garnishee's LIABILITY, AS AFFECTED BY A PREVIOUS ASSIGNMENT OF THE DEFENDANT'S PROPERTY IN HIS HANDS, OR BY ITS BEING SUBJECT TO A LIEN, MORTGAGE, OR PLEDGE. § 521. A VERY common result of garnishment is, to bring the attachment in conflict with previous transfers of the defendant's property found in the hands of the garnishee, or with existing liens upon it. Hence have arisen numerous decisions concerning the effect of garnishment in such cases. This branch of the subject will be considered in reference to the following heads : I. Assignments, legal and equitable ; II. Liens ; III. Mortgages and pledges. § 522. I. Assignments, legal and equitable. Where a garnishee holds property which once belonged to the defendant, but whicli, before the garnishment, was, for a valuable consideration, sold to the garnishee, the attachment cannot reach it. It is no longer the property of the defendant, but of the garnishee. In any such case, if the assignment be in writing, and bear date before the attachment, and there be nothing to repel the presumption that it bears its true date, it will be effectual as against the attachment, and no evidence of its delivery, or of its receipt and acceptance by the assignee, before service of the attachment, is necessary to perfect it and give it priority.^ § 523. Where a garnishee sets up title in himself to the prop- erty in his hands, it is entirely competent for the plaintiff to impeach that title, on account of fraud or other invalidating cir- cumstance, and thereby show that the property is still liable for the defendant's debts.^ And in Louisiana, he may call upon the assignee, whether he be the garnishee himself or a third party, 1 Sandiflge v. Graves, 1 Patton, -Jr. & 2 Cowlcs v. Coc, 21 Conn. 220. Heatli, 101. [464] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 523 to prove the consideration of the assignment. " The attaching creditor, " observed the Supreme Court of that State, " cannot be deprived of his lien and the right resulting from it, unless by a person who has previously acquired the property of the thing at- tached ; and if the validity of the consideration be a necessary ingredient in the right of the assignee, the proof must come from him who alleges the assignment ; for his opponents cannot prove a negative. It is clear of any doubt, that it is a bond fide assign- ment alone which can be successfully opposed to the attaching creditor ; and if proof of the validity of the consideration could not be demanded, this would be tantamount to a declaration that a fraudulent or collusive assignment might have that effect." ^ And in New Hampshire, it was declared that the assignee, in or- der to maintain his claim against the attaching plaintiff, is bound not only to prove his claim to have been first in time, but also to have been well founded in legal right ; and that the assignment was not merely formal, but bond fide, and upon sufficient consid- eration. ^ Hence, where the firm of A. & Co., being insolvent, placed a number of demands in their favor in the hands of B., for collection, in order that he might take charge of the proceeds and keep them out of the reach of attachment, and pa}- a divi- dend out of them to such of A.. & Co.'s creditors as w^ere willing to discharge them ; and B. accepted an order drawn by A. & Co., requesting him to pay the money which he might collect, to the order of C, one of the firm ; and B., having collected a part of the money, lent it to different persons ; and was afterward sum- moned as garnishee of A. & Co., at a time when he had nothing in his hands but some of the demands left with him for collec- tion, and the notes which he had taken ; and after the garnish- ment, in conformit}^ with verbal orders from C, he paid a dividend to such of the creditors of A. & Co. as were willing to give a discharge ; it was held, that this was an invalid transfer of property, for a purpose not recognized by law, and void against creditors ; that the order of A. & Co. to pay the proceeds of the demands to C, was the same as if it had been drawn in favor of A. & Co. ; and that the fact that the proceeds had been lent out and notes taken therefor, made no difference as to the liability of B., as garnishee of A. & Co., who became liable for the money 1 Maher v. Brown, 2 Louisiana, 492. - Giddings v. Coleman, 12 New Hamp. 153. 30 [465] § 524 garnishee's liability as affected [chap. XXIV. received by him immediately upon its receipt, and could not avoid that liability by lending the money out ; and therefore he was charged as garnishee of A. & Co.^ So, where A. was indebted to B., and B. procured C, for an agreed premium, to guarantee the debt; and afterwards A. failed, and, at the suggestion of B., but without any knowledge of the previous guaranty, made an absolute transfer of property to C, to secure the debt to B., and after such transfer C. was garnished ; the court held, that " the conveyance, instead of being made for the benefit of C, was evi- dently intended for the security of B. It was manifest that A., at the time of the transfer, had no knowledge that C. had guaran- teed the payment ; and between them therefore tliere was no privity, and no contract created by that guaranty. Had C. been called upon for the amount of the note by reason of his separate sti[)ulation, the payment of that amount would not, of itself, have given him a right of action against A. It was a distinct matter, collateral to the note, between other parties, and upon another consideration. There being therefore no consideration moving from C. for the conveyance of the property in question, he holds it as the trustee of A., and must be charged as such in this ac- tion." 2 So, where a surety received from his principal property to secure him against his liabilities, and the principal afterwards made a settlement with the surety, in which he transferred to the surety his whole interest in the property for a grossly inadequate consideration, the settlement was held to be fraudulent against the creditors of the principal, and the surety was charged as gar- nishee of the principal, in respect of the propertj^ received by him/^ But in this case, as well as another in Massachusetts,'* and one in New Hampshire,^ where property was found in the gar- nishee's hands, under a contract that was fraudulent as to cred- itors, but the garnishee, before he was sumvnoned, had, bond fide^ paid debts of the defendant to an amount equal to the value of the property in his hands, he was held not liable in respect of the property. § 524. The rule, as stated in the preceding section, applies to a case where the assignee is before the court, and in a position to ' Hooper V. Hills, Pick. 435. ■• Thomas v. Goodwin, 12 Mass. 140. 2 Knight V. Gorliani, 4 Maine, 402. ^ Hutchins i\ Sprague, 4 New Hamp. " Ripley i;. Severance, 6 Pick. 474. 4G9. [466] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 525 assert liis rights, and to be called upon to defend them. Where this is not the case, it is not admissible to charge with fraud a transaction to which he was a party. Thus, where a garnishee answered, and admitted having made a note to the defendant, which he stated was assigned to a third party before the garnish- ment ; and the plaintiff, on a contest of the answer, offered to prove that the assignment was fraudulent; it was held, that that question could not be tried in that proceeding, to which the as- signee was not a party ; for the judgment of the court establish- ing the fraud would not be conclusive upon him ; and if not thus conclusive, the garnishee might be subjected to a double recovery.^ § 525. In determining whether the property has in fact been assigned, the point to be ascertained is, whether the supposed 'assignor has so disposed of it that it is beyond his control. A mere direction from him to deliver or pay it to the supposed as- signee, without the assignee's knowledge and assent, will not be considered to constitute an assignment, as against an attaching creditor of the assignor.^ Thus, where A. sent to B. a quantity of gold-dust to be sold, and directed the proceeds to be paid to C., a creditor of A., and after the sale, and before the proceeds were paid over, B. was summoned as garnishee of A. ; it was held, that C. had acquired no interest in the proceeds, but they still were the property of A.^ So, where, upon a consignment of goods to be sold on commission, the consignees accepted an order drawn upon them by the consignor, by which they were re- quested to pay to his order, in thirty days, fhe sum of one thou- sand dollars, or what might be due after deducting all advances and expenses; and after the acceptance, but before the goods were sold, the consignees were summoned as garnishees of tlie consignor; it was decided that the order, not being made to a third person, could not operate as an assignment, and neither was 1 Simpson v. Tippin, 5 Stewart & Por- v. Brownlee, 2 Speers, 519 ; People v. ^^!^' ^"^^^ Johnson, 14 Illinois, 342 ; Dolsen v. Balcer v. Moody, 1 Alabama, S15 ; Brown, 13 Louisiana Annual, 551 ; Rob- Clark V. Cilley, 36 Ibid. 652; Kelly v. ertson v. Scales, Ibid. 545; Connellv v. Roberts, 40 New York, 432. Harrison, 16 Ibid. 41 ; Hearn v. Foster, Briggs V. Block, 18 :Missouri, 281 ; 21 Te.xas, 401 : Center v. McQuesten, Sproule V. McNuIty, 7 Ibid. 62. See 18 Kansas, 476. Brown v. Foster, 4 Cashing, 214; State [467] § 526 garnishee's liability as affected [chap. XXIV. it a negotiable security ; and therefore the garnishees were charged.^ So, where attorneys at law collected money in a suit in the name of A., to the use of B., and were summoned as gar- nishees of A., and B. disclaimed any right to the money, they were charged.^ So, where goods were shipped by A. to B., and A- afterwards drew a draft on B., in favor of a third party, against the consignment, which draft B. refused to accept, but expressed a willingness to pay the amount of it out of the proceeds of the consignment ; such expression was deemed insufficient to give the holder of the draft a right to the proceeds.^ So, where money was deposited by A. in a bank, with the express agreement be- tween A. and the bank that the deposit was made and received to pay certain specified checks which A. had drawn or would draw ; the money was considered to be A.'s, and the bank lialjle therefor as garnishee, until the bank had paid, or promised to pay it on the checks.* So, where A. shipped to B. five bales of cot-« ton ; and at the same time, being indebted to C, wrote to him, " I ship three bales of cotton for you to B. ; sell when you think best, and credit my note with the amount ; " it was held, that the title to the cotton had not passed out of A., and that it was attachable for his debt, by garnishment of B.^ § 526. But where the appropriation of the property is made by the assignor and accepted by the assignee, the particular form in which the thing is done is of little moment, and the assignment will be sustained. Thus, certain funds were placed by A. in the hands of B., for the purpose of paying certain drafts drawn upon the fund, and the holders of the drafts knew that the fund was so placed for that purpose, and assented to it, by presenting their drafts, and receiving each a pro rata payment out of the fund. It was then attempted to reach the fund in the hands of B. by attachment against A. ; but the court held, that it was assigned to B. for a particular purpose, and that the assent of the holders of the drafts having been given, there was an appropriation of it, which could not be changed without their consent, and that B. was not liable as garnishee of A.*' So, where A. received a sum 1 Cushmjin v. ITayncs, 20 Pick. 132. ■• Mayer v. Chattahoochie Nat. Bank, 2 Myatt V. Lockhart, 9 Alabama, 91. 51 Georgia, 325. 8 Dolsen v. Brown, 13 Louisiana An- ^ Hedd v. Burrns, 58 Georgia, 574. nual, 551. ^ Uwight v. Bank of Miciiigan, 10 [468] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 528 of money from B. to pay over to C, and afterwards saw C, and informed him of having received it, but that he did not then have it with him, but would pay it to him ; to which C. assented, and requested A. to hold it for him, which A. consented and promised to do ; it was held, that C.'s right to the money became absolute after his conversation with A., and paramount to an attachment against B., served after that time.^ § 527. An equitable assignment will secure the property against attachment for the debt of the assignor, though no notice be given, prior to the attachment, to the person holding the prop- erty, if it be given in time to enable him to bring it to the atten- tion of the court before judgment is rendered against him as garnishee. Thus, A. being indebted to B., assigned to him a policy of insurance on goods at sea, which were afterwards lost. A creditor of A, garnished one of the underwriters, who had no knowledge of the assignment of the policy ; and the question was whether the assignment, without notice to the underwriters, was good, so far as to vest a property in the assignee, and thus pre- clude an attachment ; and the court considered that the assign- ment, though made without {he knowledge or assent of the underwriter, vested an equitable right in the assignee ; and the garnishee was discharged.^ So, a judgment obtained in the name of A. to the use of B., is not attachable in a suit against A.^ So, where one held a power of attorney authorizing him to transfer to himself, as trustee, certain shares of bank stock to pay a debt due to him as trustee, it was held to be an equitable assignment of the stock.^ § 528. Much more will an assignment be effectual, where notice of it has been given to the garnishee before the attach- Metcalf, 58. See Camraack v. Floyd, 10 derstone v. Jlanro, 2 Cranch C. C. 623 ; Louisiana Annual, 351 ; Smith v. Clarke, Walling v. Miller, 15 California, 38; Hal- 9 Iowa, 241 ; Van Winkle v. Iowa I. & S. deman !-•. Hillsborough & Cin. 11. R. Co., F. Co., 56 Ibid. 245; Mansard v. Daley, 2 Handy, 101 ; Smith v. Clarke, 9 Iowa, 114 Mass. 408. 241 ; Canal Co. i-. Insurance Co., 2 Phila- 1 Brooks I'. Hildretb, 22 Alabama, 469. delphia, 354 ; Noble v. Thompson Oil Co., See Rurnside v. McKinley, 12 Louisiana 79 Penn. State, 354 ; McGuire v. Pitts. 42 Annual, 505 ; Simpson i'. Bibber, 59 Iowa, 535 ; Dresser v. McCord, 96 Illi- Maine, 196 ; Ray v. Faullcner, 73 Illinois, nois, 389. 469; Crownover v. Bamburg, 2 Brad- ^ Davis i-. Taylor, 4 Martin, n. s. 134. well, 162. * Matheson v. Rutledge, 12 Richardson, '^ Wakefield v. Martin, 3 Mass. 558. 41. See Page v. Crosby, 24 Pick. 211 ; Bal- [469] § 529 garnishee's liability as affected [chap. XXIV. ment. Thus, where the garnishees disclosed that they had collected money for the defendant, but before its receipt, and be- fore the garnishment, they had accepted an order drawn on them by the defendant in favor of a third person, for whatever sum they might collect ; the order was held to be an assignment of the money, and the garnishees were discharged.^ So, where a bank was garnished, in respect of certain shares of its stock, standing in the name of the defendants on its books, but which, it appeared in evidence, had, before the garnishment, been sold and transferred by the defendants in England, by deliv- ery of the certificate, with a power of attorney authorizing the transfer of the stock on the books of the bank, though the stock was not transferred until afterwards; the court decided that the stock was equitably transferred before the garnishment, and said : " It cannot be denied, that a mere cliose in action equitably assigned, is not suliject to the operation of a foreign attachment instituted against the party whose name must ne- cessarily be used at law for the recovery of the demand, and that an attaching creditor can stand on no better footing than his debtor." 2 t § 529. If a creditor attach goods which appear as the property of the defendant, but wherein another person has nevertheless an interest, which he communicates to the creditor before the attachment is laid, the creditor is bound to refund to such person his proportion of the money recovered under the attachment, notwithstanding the judgment of a competent court decreed the whole to the plaintiff as the property of the defendant.^ And where the maker of a note was charged as garnishee on account thereof, and paid the amount of it under the attachment, an assignee of the note prior to the garnishment, who was not made a party to, and had no notice of, the attachment suit, was held entitled to recover the amount of the note from the attaching creditor.* 1 Legro V. Staples, 16 Maine, 252 ; 2 United States v. Vaughan, 3 Binney, Adams v. Ixobinson, 1 Pick. 4G1 ; Ncsmitii 394. V. Drum, 8 Watts & Sergeant, 9 ; Brazier ^ Bank of N. America v. McCall, 3 V. Chappell, 2 Brevard, 107 ; Lainkin r. Binney, 008. Pliillips, 9 Porter, 98 ; Colt v. Ives, 31 * Garrott v. Jaffray, 10 Bush, 413. Conn. 25 ; Dobbins v. Ilyde, 37 Missouri, 111 ; Newell v. Blair, 7 Micliigan, 103. [470] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § o32 § 530. "Where it is provided by law, that when a garnishee discloses an assignment of the debt to a third person, the snp- posed assignee may be cited to become a party to the suit, in order to test the validity of the assignment, it is the duty of the court to suspend proceedings against the garnishee, and cause notice to be given to the supposed assignee to appear and contest the right of the attaching creditor to hold the debt under the garnishment.^ If the assignee, after being notified, fails to ap- pear and defend his rights ; ^ or if he appear and there is a trial of the supposed assignment, resulting in a judgment against him ;3 the judgment, in either case, against the garnishee will bar a sub- sequent action against him by the assignee. § 531. The rights of conflicting assignments of the same effects cannot be tried in an attachment suit. Where, therefore, it ap- peared that there was an assignment to one person before the at- tachment, and to another afterward, it was held, that the conflict between the two assignments was an appropriate matter for the determination of a court of equity ; but that, so far as the attach- ment was concerned, their existence only showed more fully that the defendant had no attachable interest, and the garnishee was discharged.* § 532. II. Liens. In its most extensive signification the term lien includes every case in which real or personal property is charged with the payment of any debt or duty ; every such charge being denominated a lien on the property. In a more limited sense, it is defined to be a right of detaining the property of another until some claim be satisfied.^ The law recognizes two species of lien, particular liens and general liens. Particular liens are, where a person claims a right to retain goods, in respect of labor or money expended on such goods ; and these liens are favored in law. General liens are claimed in respect of a general balance of account ; and are founded on express agreement, or are raised by implication of law, from the usage of trade, or from the course of dealing between the parties, whence it may be 1 Clark V. Few, 62 Alabama, 243. * Shattuck v. Smith, 16 Vermont, 132. 2 Stevens v. Dillman, 86 Illinois, 233. 5 Bouvier's Law Dictionary. 3 Fisk r. Weston, 5 Maine, 410; Born V. Staaden, 24 Illinois, 320. [471] § 535 garnishee's liability as affected [chap. XXIV. inferred that the contract in question was made with reference to their usual course of dealing.^ § 533. If a garnishee having propertj' of the defendant in his possession, has a valid lien thereon, as the defendant could not take the property from him without discharging the lien, so nei- ther can a creditor take it by garnishment.^ Therefore, where a garnishee to whom goods were consigned, had, before the gar- nishment, verbally agreed to pay to a third person, out of the proceeds of the consignment, a bill of exchange drawn by the consignor on the garnishee, it was held, that the promise was binding on him, and gave him a lien on the goods, which entitled him to retain them for his indemnity.^ § 634. In South Carolina, before the enactment of the statute to be referred to in the next section, it was held, that to enable a garnishee to retain goods of tlie defendant in his hands, it is not necessary that he should prove himself to be a creditor enti- tled to bring an action ; but it is enough if he establish a lien, even for outstanding liabilities incurred for the defendant. And it was there decided, that where an agent in that State, for a commission, negotiates exchanges for a house in New York, buys bills on Europe for them, and, to raise funds for that purpose, draws and sells bills upon them at home for corresponding amounts ; some of which they accept, and others they do not, and the bills are protested ; such agent has a lien on any funds or securities which come to his hands for his principal, to secure himself against his outstanding liabilities, although he have not in fact paid any of the bills. And there is no difference between bills accepted and not paid, and bills not accepted. The lien extends to all equally. Nor does it make any difference, that the funds and securities came to hand after the liability was incurred, and therefore were not looked to as an indemnity at the time.* § 535. In South Carolina, a statute provided, that if the defendant, whose property is attached in the hands of a gar- i2Wheaton's Selwyn, 4th Am. Ed. Nolen r. Crook, 5 Humphreys, 312 ; Smith 637. r. Clarke, 9 Iowa, 2U. 2 Nathan v. Giles, 5 Taunton, 558 ; ' Grant v. Shaw, 16 Mass. 341 ; Curtis Kirkman v. Hamilton, 9 Martin, 297 ; v. Norris, 8 Pick. 280. * Bank v. Levy, 1 McMuIlan, 431. [472] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 536 nishee, be really and truly indebted to the garnishee, then the garnishee, if his possession of the defendant's property was obtained legally and bond fide, without any tortious act, shall be first allowed his own debt. In such case, the garnishee is there styled " a creditor in possession ; " and the effect of the statute is simply to give him a lien on the property in his hands for any debt due from the defendant to him, whether, by the general principles of law, he would have such lien or not. But the gar- nishee's claim must be a debt, not a mere liability, in virtue of which he may or may not be eventually subjected to loss. There- fore, it was held, that a surety not h'aviug paid the debt of the principal, is not entitled, when summoned as garnishee of the principal, to hold the effects in his hands as a creditor in posses- sion.i Under this statute, this case arose. A. sent an order to B. to purchase on his account a quantity of cotton, which B. pur- chased and forwarded ; the last of it being sent on the 3d of Sep- tember. On the 4th, 7th, and 8th of September, B. drew bills on A., payable on the 25th of November, which were accepted, but were protested for non-payment. On the 27th and 28tli of No- vember, C. paid the bills for B.'s honor, and claimed and received reimbursement from B. On the 5th of December, a ship of A.'s, which had previously come consigned to B., was attached by a creditor of A., and B. claimed to hold the ship as a creditor in possession. Two questions were raised: 1. Whether, when the attachment was levied, A. was indebted to B. ; and, 2. Whether B. had then, as consignee of the ship, such possession of her as to entitle him to the benefit of the statute. Both questions were decided in tlie affirmative ; and the attachment declared inopera- tive as against B.^ § 536. Whether the garnishee has a right to hold the defend- ant's property against an attachment, must depend on the actual existence of a lien, as contradistinguished from mere possession. If he have no lien, legal or equitable, nor any right as against the owner, by contract, by custom, or otherwise, to hold the property in security of some debt or claim of his own ; if he has a mere naked possession of the property without any special property or lien ; if the defendant is the owner, and has a pres- ent right of possession, so that he might lawfully take it out of 1 Yongue v. Linton, 6 Richardson, 275. ^ Mitchell v. Byrne, Richardson, 171. [473] § 539 garnishee's liability as affected [chap. XXIV. the custody of the garnishee ; the garnishee cannot claim to sat- isfy his debt out of it before the attachment can reach it ; ^ but must attach it, as any other creditor, for his debt.^ § 537. Where a garnishee has in his possession real and per- sonal property of the defendant, both of which are liable to him for a debt of the defendant, he cannot, in the absence of fraud, be subjected as garnishee in respect of the personalty, and thereby compelled to look to the real estate alone for his security.^ § 537 a. A money judgment against the garnishee for the value of tlie property in liis hands, on which lie has a valid lien, is erroneous ; it should be a conditional judgment, to be dis- charged by delivery of the property to the sheriff, upon provision being made for the payment of his lien.* § 538. III. Mortgages and Pledges. A pledge or pawn is a bailment of personal property, as a securitj^ for some debt or engagement. A mortgage of goods is distinguishable from a mere pawn. B}'^ a grant or conveyance of goods in gage or mort- gage, the whole legal title passes conditionally to the mortgagee ; and if the goods are not redeemed at the time stipulated, the title becomes absolute at law, although equity will interfere to compel a redemption. But in a pledge, a special property only passes to the pledgee, the general property remaining in the pledger. There is also another distinction. In the case of a pledge of personal property, the right of the pledgee is not con- summated, except by possession ; and ordinarily when that pos- session is relinquished, the right of the pledgee is extinguished or waived. But in the case of a mortgage of pergonal property, the right of property passes by the conveyance to the pledgee, and possession is not, or may not be, essential to create, or to support the title.^ § 539. The principle has been before laid down, that a gar- nishee can be rendered liable in respect of the defendant's 1 Allen V. Hall, 5 Metcalf, 263. * Hawthorn ;•. Untliank, 52 Iowa, 507. 2 Allen V. Me Johnson v. Hersey, 70 Maine, 74; 73 ■« Schatzill V. Bolton, 2 McCord, 478 ; Ibid. 291. Chatzel v. Bolton, 3 Ibid. 33. [504] CHAP. XXVII.] WITH CO-DEBTORS, ETC. § 572 sidered that, as the sole surviving partner is, in law, the owner of all the partnership effects, a debt due to the late partnership may be attached in an action against the survivor.^ § 572. II. Other Cases of Joint Creditors of the Garnishee. An interesting question arises as to the liability of a garnishee, where he is indebted to two persons jointly, and is summoned as garnishee of one of them, when his joint creditors are not part- ners. This, it will be perceived, is a different case from that we have been considering, and may be sustained on principle. In Maine, the following case arose. A. and B. contracted with C. to cut and haul lumber, and went on with the perform- ance of the contract ; and C, at the time of the garnishment was indebted to them jointly in a certain sum of money. The question was, whether, in respect of that debt, C. could be charged as garnishee of A. alone ; and the court said : " The al- leged trustees in this case are the holders of funds, of which the principal debtor (the defendant) is entitled to a moiety. The defendant has it not in his power, without joining the party en- titled with him, by any coercive process, to compel payment. The principal reason for the necessity of this joinder usually given is, that otherwise the party indebted might be liable to the cost and inconvenience of two suits upon one contract. Hence if he himself sever the cause of action, by paying one of his joint creditors his proportion, he is liable to the several creditor. So, the law, in carrying out its remedial provisions, m^y sever a con- tract, so as to subject the debtor to the liabilitj^ of two suits upon one contract. The death of one of two jointly contracting par- ties, renders the survivor and the administrator of the deceased party each liable to a several suit. So, if the trustee be indebted to the principal in an entire sum, beyond the amount wanted to satisfy the judgment recovered by the attaching creditor, he will remain liable to the action of his principal for the residue. The trustee is but a stake-holder ; and the law indemnifies him for the expense of the suit, by allowing him to deduct it, as a charge upon the funds in his hands. Notwithstanding, therefore, if the trustees are charged in this case, an entire liability will thereby be divided into two parts, in the judgment of the court this 1 Knox r. Schepler, 2 Hill (S. C), 595; Berry v. Harris, 22 Maryland, 30. [505] § 572 garnishee's liability [chap, xxvii. objection cannot prevail." ^ In Missouri, the same point was decided in a case where the garnishee was the maker of a note payable to two jointly ; but the court do not give at large the reasons for their decision.^ The same result was arrived at in Massachusetts, in a case where the garnishees had in their possession money belonging to A. & B., joint owners of a ship, the proceeds of the sale of a car- go of silks, and were garnished in an action against B. It was objected that the garnishees were not liable, because the money in their hands was the joint property of A. & B. ; but the court held that a creditor of either might attach a moiety of the pro- ceeds, and charged the garnishees.^ There is in Massachusetts a later case, which might seem to militate against this doctrine, and therefore demands notice.* A. & B. contracted with a town to erect a barn and do some other work, for a stipulated compensation. After the work was done, the town was garnished in two suits against B., and in its answers disclosed its indebtedness to A. & B. jointly, and judgments were rendered against it in respect of B.'s share of the debt. After- wards A. & B. joined in an action against the town, and the judg- ments rendered against the town, as garnishee of B., were set up in bar pro tanto of the recovery. The court, after referring to the garnishments, say : " In each of those suits the town was charged, and a portion of the debt due to the plaintiffs jointly, was thus adjudged liable to be appropriated by process of law, to the payment of the several debt of one of them. This, we think was erroneous. It seems to be now settled by authorities, that a joint debt cannot thus be severed and appropriated, in whole or in part, to discharge the several debt of one." In sup- port of this broad and general proposition, the court refer to cases already herein considered, of attaching partnership credits for the debt of part of the firm, and then proceed with remarks which apply only to such a case. The case before the court is evidently treated as one of partnership ; and the court conclude their opin- ion on this branch of the controversy with these words : " It ap- pears, by the answers of the town, that they were indebted to 1 Wliitney v. Munroe, Maine, 42. took the contrary ground. See French v. 2 Miller V. Richardson, 1 Missouri, 810. Rogers, IG New llamp. 177 ; Fairchild v. 3 Thorndike v. De Wolf, 6 Pick. 120. Lampson, 07 Vermont, 407. In Hanson v. Davis, 10 New Hnmp. l.>3, * Ilawes v. Waltham, 18 Pick. 451. the Superior Court of New Hampshire [506] CHAP. XXVII.] WITH CO-DEBTORS, ETC. § 572 the two jointly, without anything further appearing. In such a case the court are of opinion that they could not be charged, in a suit against one only." We are left to the conclusion that, if it had appeared to the court that the debt was due to A. & B. jointly, but not as partners, the decision might have been other- wise. Whether, however, the court intended to give such an intimation, or not, it is quite certain that the question of the lia- bility of a garnishee under such circumstances was not passed upon by the court. [507] 575 GAKNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. CHAPTER XXVIII. THE garnishee's LIABILITY AS A PARTY TO A PROMISSORY NOTE. § 573. Various questions of interest arise in the consideration of this subject. The attempt to subject the maker of a promis- sory note to garnishment, in a suit against the payee, necessarily brings to light, in some of its aspects, serious clifBculties. Prin- cipal among these is the danger that the maker, if subjected as garnishee, may, without any fault on his part, be compelled to pay the amount of the note a second time. That such a result is possible, is enough in itself to give importance to our present inquiries. The subject will be considered, I. In regard to unne- gotiable notes ; and II. With reference to negotiable notes. § 574. I. Unnegotiahle Notes. By notes of this description are meant all notes which are not governed by the law merchant. Usually the maker is entitled to every defence against the payee, arising at any time before he receives notice of the assignment of the note. In some States, however, he can interpose between himself and a bond fide assignee, no defence which arose after the assignment was in fact made, though he had no knowledge of its having been made. § 575. Wherever notice of an assignment is required to be given by the assignee to the maker, there can be no good reason why the latter should not be held as garnishee of the payee, at any time before he receives such notice ; but unquestionable reasons why he should. He is indebted to the payee by written promise, and if in respect of that indebtedness he be charged as garnishee, he is in no sense injured thereby, for no assignment made after he is garnished can prevent his setting up his payment as garnishee as a defence against the note in the assignee's hands, even though the assignee acquired title bond fide and was ignorant [508] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 577 of the garnishment.^ In such cases the laches of the assignee occasions his loss. § 576. When the maker of an unnegotiable note is thus gar- nished, if he have received notice of an assignment of the note, made before the garnishment, he shoukl state it in his answer ; or if he be afterward notified of such antecedent assignment, in time to amend his answer before judgment is rendered thereon, he should make it known to the court ; and if he fail to do so, he cannot avail himself of the payment of the judgment rendered against him as garnishee, in defence of an action brought by the assignee.2 So, if he have been sued on the note by persons styling themselves assignees.^ And it matters not whether the information he has received of an assignment be in fact true or false ; it is equally his duty to make it known in his answer.^ And if the garnishee, at any time before payment of the judg- ment against him, receive notice of an assignment made before he was garnished, and fail to take proper steps to prevent pay- ment of the judgment, it is said that such payment w^ill be in his own wrong, and will constitute no valid defence to the claim of the assignee.^ § 577. These rules apply with equal force where, as at the common law, no action can be maintained on such notes except in the name of the payee, and where, as in many States, the assignee is authorized by statute to sue in his own name. In the latter case, the assignee is invested with a legal right, which he may enforce by an action at law, and it is therefore complete. In the former, the right is merely equitable, and not susceptible of enforcement by the assignee in his own name, except in a court of equit}' ; but it is none the less, in this proceeding, entitled to 1 Dore V. Dawson, 6 Alabama, 712 ; ^ Crayton v. Clark, 11 Alabama, 787 ; Robinson v. Mitchell, 1 Harrington, 365 ; Foster v. White, 9 Porter, 221 ; Colvin v. Covert !'. Nelson, 8 Blackford, 265 ; Com- Rich, 3 Ibid. 175; Cross v. Haldenian, 15 stock V. Farnum, 2 Mass. 96; Clark v. Arkansas, 200; Lewis v. Dunlop, 57 Mis- King, Ibid. 524 ; Junction R. R. Co. v. sissippi, 130. Cleneay, 13 Indiana, 161 ; Shetler v. ^ Stubblefield v. Hagerty, 1 Alabama, Thomas, 16 Ibid. 223 ; Canaday v. Det- 38 ; Smith v. Blatchford, 2 Indiana, 184. rick, 63 Ibid.485; Elston I'. Gillis,69Ibid. ^ Foster v. Walker, 2 Alabama, 177; 128. In Alabama no notes are recog- Wicks v. Branch Bank, 12 Ibid. 594. nized as governed by tlie principles of ^ Oldham v. Ledbetter, 1 Howard (Mi.) the law merchant, but such as are made 43. payable in bank. [509] § 578 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVin. the protection of the courts ; which, with great uniformity, have sustained equitable assignments against attachment for the debts of the assignors.^ § 678. What will be a sufficient statement of an assignment in the answer of a garnishee must depend, to some extent, upon the force given to the answer under the system of practice in each State. In Massachusetts, at the time when the garnishee's liability was determined solely by his answer, and no extrinsic evidence, tending either to fix or defeat his liability, could, even with the consent of plaintiff, defendant, and garnishee, be intro- duced, it was held, that the assignee, in order to avail himself of the assignment, must exhibit to the garnishee, before he is examined, satisfactory evidence of a legal assignment, made before the attachment, in order that the garnishee may, in his answer, lay the evidence before the court.^ The same rule prevails in Mahie.^ Hence, if such evidence be produced to the garnishee, and embodied in his answer, he cannot be charged, though it appear that the payee sold the note for the express purpose of absconding, and defrauding his creditors.* In the Revised Statutes of Massachusetts of 1836, and in the General Statutes of that State of 1860, it was provided that " the answers and statements sworn to by a trustee shall be considered as true, in deciding how far he is chargeable, but either party may allege and prove any other facts not stated nor denied by him, that may be material in deciding that question." Under this statute a garnishee answered that he had given the defend- ant certain notes, which he was informed and believed had been transferred by the defendant to a creditor of the defendant, for a valuable consideration ; but he had not been informed and did not know who was the owner of the notes. No additional alle- gations were filed, nor collateral proofs offered, by the plaintiff; and the garnishee's liability was therefore to "be determined solely upon his answer. It was objected by the plaintiff that the garnishee did not state the assignment as of his own knowl- edge ; but the court overruled the objection ; holding that if the garnishee answers fairly and makes a full disclosure, the 1 See Cliapters XXIV. and XXXI. * Newell v. Adams, 1 D. Chipman,346; 2 Foster w. Sinkler, 4 Mass. 450; Wood Hiiteliins v. Hawley, 9 Vcriiiont, 295; V. Partridge, 11 Ibid. 488. Burke v. Whitcomb, 13 Ibid. 421. 8 McAllister v. Brooks, 22 Maine, 80. [510] CHAP. XXVni.] GABNISHEE AS PARTY TO A NOTE. § 580 facts which he states to be true, from his inTormation and belief, are to be considered as true, as well as those stated on his own knowledge.^ § 579. Where, however, as is generally the case, the answer of the garnishee may be controverted and disproved ; and more especially where, if the answer sets up an assignment of the note, the supposed assignee may be cited into court, and required to substantiate the assignment ; it cannot be considered necessary for the garnishee to set forth in his answer the evidence of the assignment ; it will be sufficient for him to state that he has re- ceived notice of it. And when he so states, no judgment can be rendered against him on the answer, whether the information he has received of the assignment be true or false. If the plain- tiff suppose the notice, or the garnishee's statement of it, to be false, the answer should be contested, and if not contested, the garnishee must be discharged ; for it not only does not appear that he is indebted to the defendant, but the answer shows indebtedness to the assignee.^ § 580. In the class of cases to which we have attended, it will be seen that the fact of notice to the maker of the note of its assignment is of first importance. But where, as in some States, the assignment of a note is jjer se operative and effectual, and no notice to the maker is required, how is the maker to be charged as garnishee of the payee, without liability to a second payment to the assignee ? If, ignorant of any assignment, he, in his an- 1 Fay V. Sears, 111 Mass. 154. posed assignee to appear and establish 2 Colvin V. Ricli, 3 Porter, 175; Foster tlie genuineness of the assignment; in V. Wliite, 9 Ibid. 221; Foster i\ Walker, default of which, the judgment against 2 Alabama, 177; Wicks v. Branch Bank, the garnishee would be a bar to a subse- 12 Ibid. 594 ; Yarborough v. Thompson, quent action by the assignee. Born v. 8 Smedes & Marshall, 291 ; Thompson v. Staaden, 24 Illinois, 320. In a later case, Shelby, Ibid. 296 ; Cadwalader v. Hart- however, it was there held, that no judg- ley, 17 Indiiina, 520. In Illinois, it was at ment could be given against a garnishee, one time lield, that the mere statement on his answer, who stated that he had by a garnishee in his answer, that he had, given the defendant a note ; had last seen after his garnishment, been notified that it in his possession before the garnish- his debt to the defendant had been as- ment took place; had been told by de- signed by the latter before the garnish- fendant that he had sold it before the ment, without any evidence, or even the garnishment ; and it had since been pre- expression of an opinion, that the assign- sented to him for payment by another ment was genuine, is not sufficient of person who claimed to own it. Wilhelmi itself to discharge the garnishee ; but v. Haffner, 52 Illinois, 222. will justify the court in requiring the sup- [511] § 581 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIH. svver, admit an indebtedness to the defendant, and judgment be rendered against him, and afterwards an assignee of the note, under an assignment made before the attachment, claim its pay- ment, can it be resisted ? Shall the assignee be prejudiced by a proceeding to which he was no party, and of which he was igno- rant ? Or, shall he be required to give notice of the assignment, in order to prevent his money from being taken to pay another's debt, when the law vests the title fully in him, without the ne- cessity of such notice? On the other hand, shall the garnishee be compelled to pay twice ? These inquiries serve to illustrate the difficulty of charging the maker of a note, wliich, though not negotiable by the law merchant, may yet be assigned without notice to the maker, so as to cut off any defence he might have against the payee, arising after the assignment, and before he comes to the knowledge of it. This difficulty was experienced by the Supreme Court of Missouri, at a time when the statute (since changed) gave the maker of an unnegotiable note a right of defence against the assignee, only in respect of matters which existed prior to the assignment ; and led that court to the only safe conclusion, that such notes, as regards liabilit}^ to attachment, must be regarded as on the same footing with negotiable paper.i § 581. The cases previously cited refer altogether to notes executed within the States where the decisions were made.. A question of some interest is presented, where the maker of a note given or negotiated in a State where it is held to be negotiable, is garnished in a State where the same note would be considered unnegotiable. It lias been ruled, that the character of the note, with reference to this proceeding, must be determined by the law of the State where it was given or negotiated ; and that if negotiable there, the maker will not be charged as garnishee of the payee. Thus, where A., having, in Massachusetts, executed a negotiable note, payable there to B., was summoned in Ver- mont as B.'s garnishee, where the note would not be considered negotiable ; it was held, that inasmuch as it was by the lex loci contractus negotiable, and therefore not attachable, it could not be attached in Vermont by garnishing the maker.^ So, where 1 St. Louis Perpetual Ins. Co. v. Co- ^ Baylies v. Houghton, 15 Vermont, hen, 9 Missouri, 421. See Speight v. 620. Brock, Precman, 389. [512] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 583 A. executed in Pennsylvania, and delivered to B., in New York, a promissory note, which, by the law of the former State, was unnegotiable, but by that of the latter was negotiable ; and be- fore the note became due, A. was summoned as garnishee of B. ; it was held, that, though the note was drawn in Pennsylvania, it was delivered and took effect in New York, and was liable to the law of that State, which gave it the effect of a foreign bill of exchange, and therefore the maker was exempted from garnish- ment on account of the payee.^ And so, in Indiana, as to a note executed and payable in Ohio.^ But where a resident of Ver- mont made a negotiable note to a resident of Massachusetts, payable at a bank in Vermont, where he could, under the statute, be subjected to garnishment in respect thereof, he was charged, because he resided, and the note zvas payable^ in Vermont, though by the law of Massachusetts he could not have been charged.^ § 582. II. Negotiahle Notes. Any difficulties which, under any system, attend the garnishment of the maker of an unnegotiable note, in an action against the payee, are trivial compared with those which beset a like attempt in the case of a negotiable note ; no notice of the transfer of which is necessary, and which is intended to pass from hand to hand as cash ; each holder, before its maturity, feeling himself secure, and entitled to be secure, against any defence which the maker might have against the payee. The injurious results of subjecting such paper to attach- ment, have led, in some States, to its express exception, by statute, out of the operation of the process. In States where the statutes are silent on this point, the courts have differed in their views. § 583. It is difficult to perceive any substantial justification of such a proceeding; while, obviously, it disregards principles which, by general consent, have been laid at the foundation of all attempts to subject garnishees to liability. It cannot be without benefit to recur to those principles in this connection. 1. Without dissent, it is impossible to charge a garnishee as a debtor of the defendant, unless it apjjear affirmatively that, at the time of the garnishment, the defendant had a cause of action 1 Ludlow V. Bingham, 4 Dallas, 47. 2 Smith v. Blatchford, 2 Indiana, 184. See Green v. Gillett, 5 Day, 485. ^ Emerson v. Partridge, 27 Vermont, 8. 33 [513] § 585 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. against him, for the recovery of a legal debt, due, or to become due by the efflux of time.^ 2. The attachment plaintiff can hold the garnishee responsible (except in some few cases which have been referred to, and have no application here) only so far as the defendant might hold him by an action at law. 3. The gar- nishee is, under no circumstances, to be placed by the garnish- ment in a worse condition than he would otherwise be in. 4. No judgment should be rendered against him as garnishee, where he answers fairly and fully, unless it would be available as a defence against any action afterwards brought against him, on the debt in respect of which he is charged. § 584. Applying these well-established principles to this sub- ject, it would seem quite impracticable to charge the maker of a negotiable promissory note, as garnishee of the payee, so long as the note is still current as negotiable paper. This character it bears until it becomes due ; and no operation which can be given to the garnishment of the maker, can change its nature in this respect. § 585. While the note is current as negotiable paper, it is usually very difficult for the maker to say whether, at the time of the garnishment, it was still the property or in the possession of the payee. If he answers that he does not know whether it was so or not, certainly he should not be charged, because it does not appear affirmatively that he was, when garnished, in- debted to the defendant ; and unless that fact do so appear, no court can rightfully render judgment against him. The most that can be claimed is, that he r)iay be so indebted, which is manifestly insufficient. The great fact necessary to charge him is not shown, but only conjectured. The whole matter is in doubt ; and while in doubt the court cannot with truth record that the garnishee is found to be indebted to the defendant ; and 1 Wctherill v. Tlanagan, 2 Miles, 243 ; ney i'. Ellis, 11 Smcdes & Marshall, 348 ; Bridges x-. North, 22 Georgia, 52; Allen Brown i\ Slate, 7 Humphreys, 112 ; Davis V. Morgan, 1 Stewart, 9 ; Pressnall v. v. Pawlette, 3 Wisconsin, 300 ; Wilson v. Mabry, 3 Porter, 105; Smith y. Chapman, Albright, 2 G. Greene, 125; Pierce v. 6 Ibid. 3G5 ; Mims v. Parker, 1 Alabama, Carleton, 12 Illinois, 358 ; People i\ John- 421 ; Foster v. Walker, 2 Ibid. 177 ; For- son, 14 Ihid. 342 ; EUicott v. Smith, 2 tune r. State Bank, 4 Ibid. .385; Connoley Cranch C. C. 543; ante, § 4G1 ; post, V. Cheeseborough, 21 Ibid. 1G6 ; Estill v. § G50. Goodloe, 6 Louisiana Annual, 122 ; Har- [514] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 585 unless that be found by the judgment of the court there is no ground for charging the garnishee.^ This difficulty is not removed by resorting to the presumption that the debt, being shown to have once existed, still exists. Presumptions of that description are founded on the experienced continuance or permanency of a state of things, or a relation, which is found to have once existed. They are available only so far as experience shows the state of things, or the relation, likely to continue. When it is shown that the nature of the subject is inconsistent with the presumption, the presumption cannot arise. "When, therefore, it appears that a garnishee, before he was sum- moned, made a negotiable note to the defendant, no presumption arises that he was, when garnished, a debtor of the defendant in respect of that note, because the negotiable character of the note is given to it for the very purpose of its being negotiated, and experience teaches that such notes are not usually held by the payees until maturity, but are the subjects of incessant transfers by indorsement and delivery. But though the garnishee should answer that the defendant, at the time of the garnishment, was the owner of the garnishee's note, not then due, no judgment should be rendered against him, because his olligation is not to pay to any p)articular person^ hut to the holder^ at maturity^ whoever he may he? Can the garnishee, or the defendant, or the court, say that the defendant will be the holder of the note at its maturity ? Certainly not ; and yet to give judgment against the garnishee, necessarily assumes that he will be ; or, in disregard of the contrary probabihty, holds the garnishee to a responsibility which he may have to meet again in an action by a hond fide holder at maturity. It results hence that no such judgment can be rendered, with- out placing the garnishee in a worse situation than he Avould otherwise be in, by requiring him to pay to the plaintiff money which he may, and probably will, afterwards be compelled to pay again to an innocent holder of the note. It is no answer to this to say, that he may not be compelled to pay a second time ; for the presumption from the character of the paper is the other 1 This paragraph was adopted as law Kimball v. Plant, Ibid. 511 ; McMillan v. by the Supreme Court of Mississippi, in Richards, 9 California, 365 ; Gregory v. McNeill V. Roache, 49%v/jssissippi, 436. Higgins, 10 Ibid. 339. 2 Sheets v. Culver, U Louisiana, 449; [515] § 586 GARNISHEE AS PAETY TO A NOTE. [CHAP. XXVIII. way ; and the mere liability to such second payment is sufl&cient to place him in a worse condition than he would otherwise be in. The only way to avoid this is to give the garnishment the effect of destrojdng the negotiability of the note ; a proposition which bears on its face its own condemnation. Finall}', this proceeding clearly violates the undoubted prin- ciple that no judgment can properly be rendered against a gar- nishee who fully and truly answers, unless it will avail him as a defence against any one who afterwards attempts to recover the same debt from him by action. This important rule can in no case be dispensed with, without manifest injustice to the gar- nishee. It is not sufficient that the garnishee may be protected ; it is the duty of the court, with the whole case before it, to as- certain whether its judgment will be effectual to that end ; and if it do not appear that it will, it should not be given. Mani- festly, then, in this case, no judgment should be given against the garnishee ; for it will not avail him as a defence to a suit by a hond fide holder, who acquires title to the note before its matu- rity. He is no party to the judgment; his rights are not passed upon by the court ; and it is simply absurd to claim that he is concluded or affected by the judgment. And yet no court can consistently sustain the attachment of negotiable paper, while it is still current, without claiming for its judgment conclusive effect in favor of the garnishee against all the world, — in which case a hond fide holder may lose the amount of the note, — or leaving the door open for the garnishee to be compelled to pay the same debt a second time. § 586. The only expedient which has yet been suggested for avoiding the difficulties attending the garnishment of the maker of a negotiable note while current, originated with the Supreme Court of Missouri ; by which it was at one time intimated ^ (but afterwards expressly decided the other way 2), that an indorsee, having no notice of the attachment, might recover back from the attachment plaintiff the amount recovered by him from the maker, as garnishee of the payee. While it is admitted that this, at least, should be done for an indorsee under such circumstances, by the court which has arbitrarily seized upon his property, vari- 1 Quarles v. Porter, 12 Missouri, 70; - Funkhouser v. How, 24 Missouri, 44 ; Colcord V. Daggett, 18 Ibid. 557. Dickey v. Fox, Ibid. 217. [516] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 588 ous inquiries at once arise. Why, and by what authority, is the leo-al recourse of the indorsee against the maker of the note thus summarily cut off, without his knowledge or consent ? By what rule or precedent is a judgment to which he was no party, and of which he had no notice, interposed between him and his debtor ? Upon what principle of law, or justice, or right, is his property appropriated to pay the debt of another ? What right has any court, against his will, to destroy his relation of creditor to the maker of the note, and constitute him a creditor of a stranger? What justice is there in compelling him to follow, perhaps to a distant State, the attachment plaintiff, to recover by legal resort that which the maker would have paid at home without such resort, if he had not been garnished ? And when he seeks in a distant forum to enforce his claim against the attachment plain- tiff', what guaranty is there that his right will be recognized? Until these questions are satisfactorily answered, consistently with established principles of law, it is difficult to see in the pro- posed expedient anything more than an unauthorized act of judicial legislation, framed to avoid, if possible, the evils flowing from the previous enunciation of an unsound doctrine. § 587. The foregoing considerations lead to the conclusion that, as a general rule, the maker of a negotiable note should not be charged as garnishee of the payee, under an attachment served before the maturity of the note, unless it he affi,rmativel(/ sJiown, that, before the rendition of the judgment, the note had become due, and was then still the property of the payee?- Let us now examine the bearing of the adjudications on this subject. § 588. In several States, it has been decided, on principle, un- influenced by statutory provisions, that the maker of a negotiable note shall not be charged as garnishee of the payee while the note is still current. In New Hampshire, the court said : " The ^reason of this rule is founded upon the negotiable quality of the paper. If the trustee could be charged in such a case, then 1 This rule was, in 1855, incorporated of negotiable paper, without interfering into the attachment law of Missouri ; and with the rights of third parties, unless my impression is that there is a tendency the suggestion of the Supreme Court of towards its adoption elsewhere by the Pennsylvania, in Kieffer v. Elder, 18 judiciary. It seems to me to be the only Penn. State, 338, to impound the note, should one which can allow of the attachment be adopted. [517] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIH. it might happen that either a bond fide purchaser of the note must lose the amount of it, or the maker, without any fault on his part, be compelled to pay it twice. To avoid such a dilemma the rule was established. " But, while announcing this general doctrine, the court charged the garnishee, because it appeared that the notes he had given the defendant were, at the time of the gar- nislnnent, in the garnishee's own hands, having, with other notes, been deposited with him by the defendant, to indemnify him for becoming the defendant's bail. In reference to this state of facts the court said : " When the process was served upon the trustee, he had the notes he had given in his own hands, and under his own control ; and those notes could not be transferred to any other person in the ordinary course of business, while he then held them, nor can he be held to pay them again, if he shall be charged in this suit on that account. The reasons on which the rule is founded do not then appear to exist in this case." ^ In Vermont, before the revision of the statutes, in 1836, it was held, that the maker of a negotiable note might be charged as garnishee of the payee, notwithstanding an assignment of the note before the attachment, unless notice of the assignment had been given to the maker.^ The particular provision which justi- fied this construction, was that the maker of a note, when sued by an indorsee, might not only have offsets of all debts due him from the payee 6e/b?'e notice of the mcZor^ewgw^, but could give in ev- idence anything which would equitably discharge him in an action by the payee. By the statute of 1836, this provision was repealed in relation to negotiable notes, and the effect of the repeal was to put all negotiable notes on the footing of mercantile paper in a commercial country.^ Thence followed a change in the decisions of the court ; and it was afterwards held, that the negotiation of a note of this character, before it became due, required no notice to the maker, and would defeat an antecedent garnishment of liim in an action against the payee.^ The same court subse- quently took stronger ground, in a case where negotiable notes 1 Stone V. Bean, 5 New Ilamp. 502. Rev. Statutes of New Ilampshire, of Since the decisions in New Hampshire 1843, eh. 208, §§ 18, 19, and Amoskeag stated in the text, a statute has been Man. Co. v. Gibbs, 8 Foster, 31(5. enacted in tiiat State, whicli subjects tlie - Britton v. rrcston, 9 Vermont, 257. maker of a negotiable note to be gar- ^ Ilinsdill v. Safford, 11 Vermont, 300. nishcd in a suit against the payee, at any * Ilinsdill r. Safford, 11 Vermont, 309 ; tiu)e before the note is transferred. See Little v. Hale, Ibid. 482. [518] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 588 had been executed, and were not yet due, and the maker was summoned as garnishee of the payee ; and said : " We ought not to hold the maker of the notes liable, unless he could rely upon this judgment as a complete defence against the notes. This he could not do, if, at the time of rendering the judgment, the notes had been already indorsed, and the indorsee was not before the court. We cannot know that this is not the case. But if we could know that the notes were now in the hands of the payee, in order to hold the maker liable we must destroy the future negotiability of the notes, and thus put it in the power of the holder to impose upon innocent purchasers, or else enable the holder to defraud the maker by negotiating the notes after the judgment in the attachment suit. There seems to he no other mode of securing the interests of all concerned^ short of denying all right to attach, hy this process, the interest in negotiable paper ivhile current.'" ^ In Pennsylvania, the distinction between negotiable and unne- gotiable notes did not formerly prevail. All notes were there unnegotiable, though assignable in a particular manner prescribed by law. Whether the maker of a negotiable note could be held as garnishee of the payee, received, nevertheless, an early de- cision in that State, in the previously cited case of a note exe- cuted there, and unnegotiable, but delivered to the payee in New York, where it was negotiable, and the maker of which was, before the maturity of the note, summoned as garnishee of the payee. The court there said : " There is no judgment or author- itative dictum, to be found in any book, that money due upon such a negotiable instrument can be attached before it is payable ; and in point of reason, policy, and usage, as well as upon principles 1 Hutchins v. Evans, 13 Vermont, 541. must give notice to the maker, of the This decision was given in 1841, and in indorsement, to perfect his right, and de- the same year the legislature of Vermont feat an attachment ; and tliat informa- passed a statute subjecting all negotiable tion of the fact of tlie indorsement, from paper to attachment, whether under or a mere stranger to tlie paper, is not snffi- over due, unless the same had not only cient. Peck i'. Walton, 25 Vermont, o3. been negotiated, but notice thereof given And where a resident of Vermont was to the maker or indorser, before the ser- garnished, who had executed a negotiable vice of trustee process on him. Williams's note to a citizen of Massachusetts, pay- Compiled Statutes of Vermont, 262 ; able at a bank in Vermont, ho was held Kimball v. Gay, 16 Vermont, 131 ; Chase to be chargeable, although, by the law of V. Haughton, Ibid. 591; Barney v. Doug- Massachusetts, he could not have been, lass, rj Ibid. 98. And it is there held, Emerson v. Partridge, 27 Vermont, 8. that the indorsee of a negotiable note [519] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVin. of convenience and equity, we think it would be dangerous and wrong to introduce and establish a precedent of the kind. To adjudge that a note, which passes from hand to hand as cash ; on which the holder may institute a suit in his own name ; which has all the properties of a bank-note payable to bearer ; which would be embraced by a bequest of money ; and which is actually in circulation in another State ; should be affected in this way, by a foreign attachment, would be, in effect, to overthrow an essential part of the commercial system, and to annihilate the negotiable quality of all such instruments." ^ Subsequently the Supreme Court of that State somewhat modified this decided position. In 1836, a statute was enacted there, containing the following provision : " From and after the service of such writ . . .all debts and all deposits of money, and all other effects be- longing or due to the defendant, by the person or corporation upon which service shall be so made, shall remain attached in the hands of such corporation or person, in the manner hereto- fore practised and allowed in the case of foreign attachment. " In construing this provision, the court considered it broad enough to include debts due by bills of exchange and promissory notes, and that there is nothing in their nature that excludes them from its operation ; but admitted that their negotiability renders the hold of an attachment upon them very uncertain ; and held, that an attachment is unavailable against a bond fide liolder, for value, of negotiable paper, who obtains it after attachment, before maturity, and without notice. At the same time the court intimated that the negotiation of such paper by a defendant, after he has had notice of the attachment, is a fraud upon the law, and that the court had power to prevent this, by im- pounding the note, taking care that it should be demanded at maturity, and that proper notice should be given to indorsers, if necessary .2 In Maryland, for three quarters of a century, the courts went to greater lengths than any other courts in the country, in sus- taining the garnishment of the maker of a negotiable promissory note ; not only holding that he might be summoned as garnishee of the payee before the maturity of the note, if the note was, at 1 Ludlow I'. Bingliam, 4 Dallas, 47. merman, 68 Ibid. 72 ; Adams r. Avery, 2 2 KiefEer v. Ehler, 18 Tenn. State, 388 ; Pittsburgh, 77. Hill V. Kroft, 29 Ibid. 186 ; Day v. Zim- [520] CHAP. XXVni.] GARNISHEE AS PARTY TO A NOTE. § 588 the time of the garnishment, in the payee's possession ; ^ but that, where the maker of such a note is, before its maturity, summoned as garnishee of one who then owns it as an indorsee, and judg- ment is rendered against him, the judgment will protect him against an action on the note, brought by a subsequent indorsee^ who acquired title to the paper before its maturity, and without knowledge of the attachment.^ It was quite impossible that so indefensible a doctrine as that could be permanently held ; and the Court of Appeals of that State, in 1879, without dissent, overruled the previous decisions, and held, that where the maker of a negotiable promissory note is summoned as garnishee of the payee or indorsee, the attaching plaintiff can have no judgment of condemnation, if it appear that the note, either before or after the service of the attachment, had been transferred or indorsed over to a third person before its maturity, for value, and without actual notice to him of the attachment.^ In Virginia, though the court declined to decide the general question whether the maker of a negotiable note could, while the note was current, be garnished in a suit against the payee, yet held, that the title of an indorsee, acquired before maturity, without notice of a previous attachment of the note in such a suit, was paramount to the attachment.^ In North Carolina, though it is held that debts due by negotia- ble paper may be attached,^ yet in order to charge the maker of a negotiable note as garnishee of the payee, it must be shown that the payee had not indorsed the note to some other person before its maturity ; for otherwise it does not appear that the maker is indebted to the payee.^ In South Carolina, the court refused to charge the maker of a negotiable note, as garnishee of the payee, while the note was current, though the plaintiff offered to give security to indemnify the garnishee against the note. " The probability," said the court, " is so great that the absent debtor may have transferred negotia- 1 Steuart v. "West, 1 Harris & Johnson, * Howe v. Ould, 28 Grattan, 1. 636. 5 Skinner v. Moore, 2 Devereux & 2 Somerville v. Brown, 5 Gill, 399. Battle, 138. 3 Cruett V. Jenkins, 53 Maryland, 217. ^ Mj-ers v. Beeman, 9 Iredell, 116 ; In the report of this case, p. 225, line 3, Ormond v. Moye, 11 Ibid. 564 ; Shuler v. is a typographical error, as I learned from Bryson, 65 North Carolina, 201. the clerk of the court : " endorser " should be " endorsee." [521] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. ble notes, that it would be too great a hardship to compel the maker to pay the money, and resort to his indemnity, if he should be compelled to pay it over again." ^ In Georgia, while it was recognized that the maker of a negoti- able instrument may be 'garnished, yet it was held, that in order to obtain a judgment against him it must afBrmatively appear that the instrument is due, and belonged to the defendant after its maturity and after the time of the garnishment.^ In Alabama, it is held that, in order to reach negotiable paper by garnishment, it must be affirmatively shown that the note had become due, and was still the property of the payee.^ In Louisiana, it was decided, that the maker of such a note could not be charged before the note became due, whether in his answer he stated that he did not know who held his note, or that he knew the defendant was the owner of it at the time of the garnishment.^ In Texas, it was first decided that the maker of a negotiable note sujjposed to have been negotiated, cannot be charged as gar- nishee of the payee ;^ and afterwards, that he cannot be charged at all, while the note is current as negotiable paper.^ In Indiana, it was held, that the maker of a note executed and paj'able in Ohio, and which by the law of Ohio was negotiable, could not be charged as garnishee of the payee, so as to defeat the right of an indorsee, acquiring the note before its maturity.^ Afterwards the court laid down the broad doctrine, that such maker could not be held as garnishee of the j)ayee, without proof that the note actually remained, at the time of the trial, in the hands of the latter, as his property, or in the hands of a fraudu- lent assignee.^ Subsequently the court held, that before a judg- ment can be rendered against the maker, the plaintiff must show that the paper has matured, and that at the time of maturity/ it 1 Gaflncy v. Bradford, 2 Bailey, 441. « Iglehart v. IMoore, 21 Texas, 501 ; " Mims V. West, 38 Georgia, 18 ; Bur- rriee v. Brady, Ibid. 014; Bassett v. ton V. Wynne, 55 Ibid. G15. Gartbwaite, 22 Ibid. 230; Kapp v. Teel, 8 Mayberry v. Morris, 02 Alabama, 113. 33 Ibid. 811. * Slieets I'. Culver, 14 Louisiana, 449 ; ^ Smith v. Blatchford, 2 Indiana, 184. Kimball v. Plant, Ibid. 511; Erwin v. » Junction R. R. Co. v. Cleneay, 13 Com. & R. R. Bank, 3 Lo\iisiana Annual, Indiana, 101; Stetson v. Cleneay, 14 180; Denbam u. Poguc, 20 Ibid. 195. Ibid. 453; Cadwalader v. Hartley, 17 6 Wybranta v. Rice, 3 Texas, 458. Ibid. 620. . [522] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 589 was held by the defendant, or that it was not in the hands of a third party holding it bo7id fide.^ In Wisconsin, the broad ground is taken, that the maker of a negotiable note cannot be held as garnishee of the payee.^ And so in Michigan,^ Minnesota,^ and Kentucky." In Iowa, the rule was laid down that the maker of a negotiable instrument cannot be charged as garnishee of the payee, unless the instrument has become due, and is shown to be, at the time of the garnishment, in the possession of the defendant.^ And so in California." In Nebraska, the general rule that the maker of a negotiable note is not chargeable as garnishee of the payee, is recognized ; but it is held, that if the note was transferred before maturity to an indorsee, voluntarily or fraudulently, for the purpose of pro- tecting the debt from the creditors of the payee, the maker may be garnished while it is in the hands of the indorsee.^ § 589. Against this strong array of reason and authority in favor of protecting negotiable paper from attachment wdiile it is current, there are some cases, to which we will now direct atten- tion. The Supreme Court of Connecticut considered that no doubt existed that a negotiable note, before it has been negotiated, may be attached on a demand against the payee, but that the attachment was liable to he defeated hy the transfer of the note, at any time before it falls due.^ The sum of this is, that the gar- nishment operates only on the rather slender probability that a defendant, whose circumstances justify an attachment against him, will hold a negotiable note in his possession until after it becomes due, merely to have its proceeds go to the attaching creditor, whom he might have paid without suit, instead of sell- ing the note and appropriating the proceeds to his private use. Where, however, the note, in form negotiable, has become due, and is still in the hands of the payee, it was held, in the same State, that a garnishment of the maker, in a suit against the 1 Cleneay v. Junction R. R. Co., 26 In- ^ Greer v. Powell, 1 Bush, 489. diana, 375; King y. Vance, 46 Ibid. 246. ^ Commissioners r. Fox, Morris, 48; 2 Davis V. Pawlette, 3 Wisconsin, 300 ; Wilson v. Albright, 2 G. Greene, 125. Carson v. Allen, 2 Chandler, 123 ; 2 ' Gregory v. Biggins, 10 California, 389. Pinney, 457. ^ Clough v. Buck, 6 Nebraska, 343. 8 Littlefield v. Hodge, 6 Michigan, 326. » Enos v. Tuttle, 3 Conn. 27. * Hubbard v. Williams, 1 Minnesota, 54. [523] § 589 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. payee, would hold the debt as against a subsequent indorsee who received the note with notice of the garnishment} In New York, the question does not seem ever to have come before the court of last resort until 1882, and then net in con- nection with the garnishment of the maker of a negotiable prom- issory note, but with the certification by a bank of a check drawn on it by a depositor. The case was treated as one involving the same principles as if the bank had issued a negotiable promissory note ; and the Court of Appeals held, that a debt evidenced by a negotiable security, whether due or not, so long as it is in the hands of the attachment debtor, can be attached by serving the attachment upon the maker of the security ; but that the attach- ment may be defeated by a subsequent transfer of the security to a bond fide taker, for value, who is in a position to enforce it against the maker.^ In Tennessee, it is held, that a negotiable note may be attached ; but it is also held, that the liability of a garnishee is conclusively settled by his answer ; and if he answers that he does not know where the note is, or who holds it, he does not admit indebted- ness to the defendant, and cannot be charged, although at the date of the answer the note may be overdue ; for it may have been assigned before it fell due. But when the g^irnishee answers that he was indebted at the time of the garnishment, and it ap- pears that the note had not been assigned before it was dishonored for non-payment, he is liable.^ These views were entertained also in Mississippi.* In Missouri, it has always been held, that negotiable paper may be attached.^ In the earliest reported case in that State, involv- ing the question, it was decided, that in order to charge the maker of such paper in an action against the payee, the plaintiff must prove that, at the time of the garnishment, the defend- ant was the holder of the note.^ The court once went so far as to sanction a judgment against the maker of a negotiable note, though he stated in his answer that he had been informed and 1 Culver V. Parish, 21 Conn. 408. * Yarborough v. Thompson, 3 Smedes 2 Bills V. Nat. Park Bk., 89 New York, & Marshall, 291 ; Thompson v. Shelby, 343. Ibid. 290. 8 Huff u. Mills, 7 Yerger, 42 ; Turner ^ Scott v. Hill, 3 Missouri, 88 ; St. Louis V. Armstrong, 9 Ibid. 412 ; Moore v. Perpetual Ins. Co. v. Colicn, 9 Ibid. 421 ; Greene, 4 Humphreys, 299 ; Daniel v. QuarU-s v. Porter, 12 Ibid. 7G ; Colcord v. Rawlings, 6 Ibid. 403 ; Matheny v. Daggett, 18 Ibid. 557. Hughes, 10 Heiskell, 401. « Scott v. Hill, 3 Missouri, 88. [524] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 591 believed that the note was assigned, for a valuable consid- eration, before the garnishment ; ^ but in another case, subse- quently, it was ruled otherwise.^ The court expressed themselves sensible of the difficulties that exist in holding that debts evi- denced by negotiable paper may be attached in the hands of the payer, particularly as the statute prescribes no mode by which an assignee can be brought before the court and have his rights lit- igated. " But," say the court, " as the judgment is not conclu- sive against him, unless he has notice, and chooses to come in and interplead, he would have a right at any subsequent time, before the money was paid over to the attaching creditor, to arrest the payment, or, after j^apnent, a right to his action, to recover it back.'' ^ This position, however, was afterwards abandoned.^ § 590. In concluding this review of the reported decisions in this country on this important subject, it is proper to remark, that in none of the States where the attachment of negotiable paper has been sustained, are the statutory provisions as to the general scope and effect of an attachment, more comprehensive than in those States where the contrary position is taken. In every State the defendant's credits may be attached ; and that term is, as to this question, fully as comprehensive, as if the stat- ute also authorized — as is frequently the case — the attachment of rights or effects. § 591. It will have been observed that some of the courts whose decisions have been referred to, indicate that an attach- ment of negotiable paper will prevail against one who acquires title after the attachment, with notice of it. If notice is to have this effect, an important question arises as to what will constitute notice. In Pennsylvania, it is considered that the doctrine of implied notice by lis pendens is inapplicable to such cases.^ It can hardly be doubted that the only safe and consistent rule is that the notice must be actual. 1 Quarles v. Porter, 12 Missouri, 76. * Funkhouser v. How, 24 Missouri, 44; 2 Walden v. Valiant, 15 Missouri, 409. Dickey v. Fox, Ibid. 217. 3 Quarles v. Porter, 12 Missouri, 76 ; ^ KiefEer v. Ehler, 18 Penn. State, 388. Colcord V. Daggett, 18 Ibid. 557. [525] § 592 GARNISHEE AS PAE-TY TO A NOTE. [CHAP. XXVIII. § 592. When one is garnished who holds no relation of debtor to the defendant, except as having, before the garnishment, made a negotiable note to him, he should carefully avoid in his answer any admission of indebtedness ; for if, in disregard of the rights which may have been already acquired, or which, before the maturity of the note, may be acquired, by indorsees, he ad- mit a debt, and be charged in respect thereof, or suffer judgment to go against him, when he could have successfully resisted it, his payment as garnishee will be no protection to him against an action on the note, by one who acquires the same bond fide, before its maturity.^ 1 Ormond v. Moye, 11 Iredell, 564 ; Brittain v. Anderson, 8 Baxter, 316. [526] CHAP. XXIX.] garnishee's LIABILITY, ETC. § 594 CHAPTER XXIX. THE garnishee's LIABILITY, AS AFFECTED BY PRE-EXISTING CONTRACTS WITH THE DEFENDANT, OR THIRD PERSONS. § 593. We have previously shown that the garnishment pro- ceeding cannot be used to change the nature of an existing con- tract between the garnishee and the defendant, and to compel the former to pay in money what he had agreed to pay in something else.i We have also considered the liability of a garnishee in respect of the defendant's property in his hands, as affected by pre-existing contracts entered into by him in relation thereto.^ There are oftentimes such contracts in regard to the garnishee's indebtedness to the defendant ; and we will now exhibit such cases as refer particularly to that position of affairs between those parties. § 594. It is an unquestionable doctrine that the garnishment of a person cannot be permitted to interfere with a contract entered into between him and a third person, with reference to his in- debtedness to the defendant. Thus, where A. drew a bill of exchange on B. in favor of C, which was indorsed by C. to D., his factor, and then accepted by B., and afterwards B. was gar- nished in a suit against C. ; it was held, that B.'s acceptance was an express contract to pay D., the factor, and that B. could not, therefore, be held as garnishee of C, the principal.^ So, where A. emploj'ed B., at an annual salary of 8900, and a short time after the engagement commenced, B. requested that his salary might be paid, as it accrued, to his father, to whom he was in- debted ; and A., with the approval of the father, agreed so to do ; it was held, that A. could not be charged as garnishee of B.* So, 1 Ante, § 550. shall, 541. See White v. Richardson, 12 2 Ante, Ch. XXIII. New Hamp. 93 ; Vincent v. Watson, 18 3 Van Staphorst i>. Pearce,4 Ma89.258. Penn. State, 96; Webber v. Bolte, 51 * Swisher v. Fitch, 1 Smedes & Mar- Michigan, 113. [527] § 595 garnishee's liability [chap. xxrx. where the defendant was indebted to the garnishees, in the sum of $2,000, and agreed to serve them as book-keeper for a year, at a salary of $1,500, payable monthly ; and that he should receive in money only enough to pay the necessary expenses of his family, and the remainder of his salary was to be applied to the liquida- tion of his debt; and the garnishees had paid him $500, which was a reasonable sum for his family expenses ; it was held, that they could not be charged.^ So, where the garnishee had become bail for another, on condition that the latter should work for him, and the wages should remain in the garnishee's hands, to indemnify him for his liability ; it was held, that the contract could not be interrupted by the garnishment, but should be sus- tained, and the respective rights of the parties preserved under it.2 So, where A. was indebted to B., and B. agreed to receive payment thereof in shoemaker's work to be done by a firm in which A. was a partner ; and work to the amount of the debt was done by the firm for B. ; and thereafter B. was summoned as garnishee of A. ; he was held not to be chargeable.^ So, where a railroad company was summoned as garnishee of one who had contracted to do certain work upon the road, and the contract contained a stipulation which authorized the company, if it saw fit, to see that the laborers employed by the contractor were paid, and to withhold from him an amount of his earnings sufficient for that purpose, and to use it in paying the laborers ; it was held, that the garnishment of the company could not have the effect of setting aside this contract, and that the company had the right to hold whatever was due the contractor until the labor- ers were paid by him, or itself apply the amount to such payment.* , The cases thus stated are sufficient for the illustration of the doc- trine. For other cases of like import see the note.^ § 595. A question arises here, as to the effect of the Statute of Frauds on Verbal contracts entered into by the garnishee, with 1 Hall u. Magee, 27 Alabama, 414. Cain, 117 Mass. 238; Mines v. Pyle, 4 2 AVliite V. Richardson, 12 New Harap. Houston, 646 ; Callagan r. Pocasset Man. 93. Co., 119 Mass. 173; St. Louis v. Regen- 3 Russell V. Convers, 7 New Ilamp. 343. fuss, 28 Wisconsin, 144 ; Balliet v. Scott, 4 Taylor v. Burlington & M. R. R. Co., 32 Ibid. 174 ; McPherson v. A. & P. R. 5 Iowa, 114. See Doyle v. Gray, 110 Co., 06 Missouri, 103 ; Godfrey r. Macona- Mass. 200. ber, 128 Mass. 188 ; Whiting v. Earle, 3 c Mason v. Ambler, Allen, 124 ; Wat- Pick. 201 ; Manchester r. Smith, 12 Ibid. kins V. Pope, 38 Georgia, 514; Hunting- 113; Bray v. Wheeler, 29 Vermont, 514. ton V. Risdon, 43 Iowa, 517 ; Potter v. [528] CHAP. XXIX.] AS AFFECTED BY PREVIOUS CONTRACTS. § 596 third persons, and coming within the terms of the statute, and which he sets up in discharge of his liability to the defendant. In Vermont, it has been decided that such contracts cannot be set up by the garnishee, so as to defeat the recourse of the attach- ing plaintiff against him.^ This proceeds upon the erroneous idea, that a verbal contract coming within the terms of the stat- ute is absolutely void ; but the better view doubtless is that taken by the Supreme Court of Massachusetts, holding the contract not absolutely void j:>er se, but that no action can be maintained on it, if the party sought to be charged plead the statute, and that the privilege of pleading it is a personal one, and may be waived, if the party choose. Therefore, where the defendant kept a boarding-house for the workmen employed in the garnishee's manufactory, and the garnishee became indebted to the defend- ant for their board ; but, when the defendant began to keep the house, it was verbally agreed between the defendant, the gar- nishee, and several third persons, who subsequently furnished her with provisions and other supplies, that the supplies should be delivered and charged to the defendant, and that at the end of each quarter the garnishee would see that the persons who furnished them were paid ; the court held, that whatever the garnishee was liable for on this guaranty, must go to discharge his debt to the defendant, and that the garnishee, though his undertaking was within the statute, was not bound, against his own choice, to set up that statute in order to avoid his promise.^ § 596. But where a garnishee relies on a contract with a third person, as affecting his liability to the defendant, it must appear that such third person stood in such position as to have a legal right to enter into the contract, and that it was entered into with the defendant's assent; otherwise it will be unavailing. Thus, where A. disclosed, as garnishee, that he had executed a note to B., the defendant, which was transferred by B. to C, as collateral security for a debt due to C. ; and, before the garnishment, A. paid C. a part of the note, and C. thereupon, without B.'s knowl- edge released him from any further claim upon it ; it was held, that C. had no legal right to discharge A. from liability for the 1 Hazeltine v. Page, 4 Vermont, 49; - Cahill r. Bigelow, 18 Pick. 309; Swett Strong V. Mitchell, 19 Ibid. 644. v. Ordway, 23 Ibid. 266. 34 [529] § 597 gaknishee's liability, etc. [chap. xxix. balance, without B.'s assent, and A. was accordingly charged as garnishee in respect thereof.^ § 597. Where the garnishee is indebted, it will not vary his liability that his contract with the defendant is to pay the money in another State or country than that in which the attachment is pending. Thus, where it was urged as a ground for discharg- ing a garnishee, that his debt to the defendant was contracted in England, and was payable there only, so that the defendant could not, and therefore the plaintiff could not, make it payable elsewhere, the court said : " We do not perceive any legal prin- ciple upon which the objection rests. This was a debt from the garnishee everywhere, in whatever country his person or property might be found. A suit might have been maintained b}'' the de- fendant here, and therefore the debt may be attached here." ^ So, where the debt was contracted where the garnishment took place, but the garnishee agreed to pay the money in another State, he was nevertheless charged ; the court referring to the case just cited as sustaining their decision.^ And in Iowa a gar- nishee of a defendant residing in Nebraska was charged, though his debt was contracted and was payable in the latter State, and was there exempt by law from attachment or execution.^ 1 Wiggin V. Lewis, 19 New Hamp. 548. See Commercial Nat. Bank v. C. M. & St. 2 Blake v. Williams, G Pick. 28G. See P. R. Co., 45 Wisconsin, 172. Mooney v. U. P. R. Co., 53 Iowa, 34G. * Leiber v. U. P. R. Co., 49 Iowa, 8 Sturtevant v. Robinson, 18 Pick. 175. 688. [530] CHAP. XXX.] FRAUDULENT ATTEMPTS. § 599 CHAPTER XXX. THE GAPw^nSHEE'S LTABIUTTY AS AFFECTED BY A FRAUDULENT ATTEMPT BY THE DEFENDANT TO DEFEAT THE PAYMENT OF HIS DEBTS. § 598. Cases heave arisen, in which a person indebted has sought to .prevent his effects from being reached for the payment of his debts, by selling property, and taking promissory notes therefor payable to third persons, in the expectation that such notes could not be reached by garnishment. All such attempts, being in fraud of just creditors, have been discountenanced wherever made, and, if the circumstances permitted, without violating established legal principles, have been defeated. § 599. Thus, in Vermont, it appeared from the answer of the garnishee that he had been indebted to the defendant ; that the defendant said to him he was afraid his creditors would attach the debt, and desired the garnishee to give notes payable to a third person, which was done, without the concurrence or knowl- edge of a third person. The court said : " We could not feel justified to allow so obvious a subterfuge to interpose any obstacle in the way of this process. If the person to whom the note is payable is now the bond fide holder of this note, and received it in the due course of business, while it was still current, the in- terest thus acquired cannot be defeated by this process, although pending at the time the holder acquired a title to it. But if the holder took the note when overdue, he took it subject to all the defences which existed while the note was in the hands of the defendant. Among such defences may be reckoned attach- ment by this process." 1 So, in New Hampshire, where A. sold property to B., and unnegotiable notes therefor were executed to C, a resident in another State, who was unknown to B. ; and 1 Camp V. Clark, 14 Vermont, 8S7. v. Davis, 24 Vermont, 363 ; Kesler v. St. See Bibb v. Smith, 1 Dana, 580 ; Marsh John, 22 Iowa, 565. [531] § 600 FRAUDULENT ATTEMPTS. [CHAP. XXX. A., at the time of selling the property and taking the notes, said he was owing some debts that he never meant to pay, and some that he would pay when he was ready ; the court held the transaction fraudulent as to A.'s creditors, and charged B. as his garnishee.^ So, in Connecticut, where A., with a view to keep his property out of the reach of his creditors, and in pursuance of a combination with B. for that purpose, sold goods belonging to him as the property of B., and took from the vendee a nego- tiable note, payable to B. at a future day, which B. assigned, before it became due, to C, who was acquainted with the trans- action ; it was held, that the vendee was the debtor of A., and was therefore liable as his garnishee.^ So, where a husband traded a manufacturing establishment belonging to himself and partner, for a tract of land, taking the conveyance of the land to his wife to defraud creditors ; and afterwards sold the land and took a note for the unpaid price, to his wife ; which remained in her hands until after its maturity, and until the maker was gar- nished by a creditor of the firm of which the husband had been a member ; it was held, that as there were involved no rights of innocent assignees of the note, the amount thereof was subject to the garnishment.^ § 600. In Massachusetts this case arose. A. collected in New York, a sum of money for B. in Boston, and had it, on his return to the latter place, in a thousand- dollar bill. Seeing B., he in- formed him that he had the money in that shape, and would then have paid B. the amount due him, if the bill could have been changed. As that could not then be done, B. requested A. to give him his negotiable note for the amount due him ; in resj)ect of which, by the law of Massachusetts, A. could not be charged as garnishee of B. The note was given, and immediately after- ward A. was garnished. Facts in the case tended to show that the note was given for the purpose of preventing the amount col- lected by A. from being reached by the creditors of B. by gar- nishment; and it was therefore contended that A. was still tlie debtor of B., and therefore liable ; but the court held the note to be a payment pro tanto, and that the garnishee was not chargeable.* 1 Green v. Doiiglity, G New Ilamp. 572. ^ Patton v. Gntos, G7 Illinois, 164. 2 Enos V. Tuttlc, 3 Conn. 27. See Price * Wood v. Bodwell, 12 Pick. 268. I'. Bradford, 4 Louisiana, 35. [532] CHAP. XXX.] FEAUDULENT ATTEMPTS. § 601 § 601. In all cases where one indebted to another gives an ob- ligation to pay the debt to a third person, it may be considered as a sound rule, that, in order to make such obligation effectual to defeat an attachment of the debt as due to the original cred- itor, it must be shown that the obligation to the third person was bond fide and upon adequate consideration.^ If the debtor give such an obligation in good faith, not knowing of any fraudulent intent in the other parties, and pay the obligation in the hands of an assignee, he cannot be charged as garnishee of him to whom the debt was primarily owing .^ 1 Langley v. Berry, 14 New Hamp. 82, 2 Dief endorf v. Oliver, 8 Kansas, 365. [533] § 602 GAKNISHEE's liability as affected [chap. XXXI. CHAPTER XXXI. THE GAENISHEE'S LIABILITY, AS AFFECTED BY AN EQUITABLE ASSIGNMENT OF THE DEBT. § 602. We have previously seen ^ that an equitable assignment of personal property of a defendant in the hands of a garnishee, will relieve the latter from liability as garnishee on account of such property. We come now to the application of the same princii^le to a debt due from the garnishee to the defendant. When it is sought to reach by garnishment a credit of the de- fendant, it must be both legally and equitably due him. There- fore, a debt due to one as a trustee for another, cannot be attached in an action against the trustee, because though legally due him, it is not his property, but another's. Thus, a note hav- ing been placed in the hands of an attorney at law for collection, he extended the time of payment, and took a new obligation in his own name. A creditor of the attorney sought to subject the debt secured by this obligation to the payment of a debt due him from the attorney. The evidence showed that the latter did not take the obligation in his own right, or for his own benefit ; and it was held that the attachment could not be sustained.^ So, where A. undertook to furnish B. certain locks, and did furnish them to a certain amount. Afterwards B. was summoned as garnishee of A., and after the garnishment he received notice that A. was doing business merely as the agent of another: it was held, that B. was not cliargeable as garnishee of A.^ So, where one was summoned as garnishee of J. S., and answered that he had executed a note to J. S., and given a mortgage to secure its payment ; but that he received the consideration there- of from S. H. S., the father of J. S., and always paid the interest thereon to him ; and that he had never known J. S., or transacted any business with him ; and it appeared in evidence that the 1 Ante, Ch. XXIV. 8 Kaley v. Abbott, 14 New Ilamp. 359. 2 Rodgers v. IlenJsley, 2 Louisiana, 597. [534] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 603 note was, at the death of S. H. S., found by his executors among his papers, and was scheduled by S. H. S. as a part of his assets ; and that S. H. S. was in the habit of lending money on notes and mort^'-ao-es, taking the securities in the names of his different rela- tives ; that he never surrendered his riglit to them when he retained possession of the papers, but considered them as his own property, and such was the case with the note in question ; that the note never was in the possession of J. S., nor did he ever make any claim to it; but on the contrary, S. H. S., when it was given, told the maker that he would always find it in his posses- sion ; it was held, that the note did not belong to J. S., and that, therefore the garnishee could not be charged.^ The same principle is applicable to all cases of equitable assignments of debts, where the defendant may be legally en- titled to collect the debt, but not for his own benefit. § 603. The doctrine which establishes the assignability in equity of choses in action, arises from the public utility of increas- ing the quantity of transferable property, in aid of commerce and of private credit.^ It is a well-known rule of the common law, that no possibilit}', right, title, or thing in action, can be granted to third persons. Hence, a debt, or other chose in action^ could not be transferred by assignment, except in case of the king ; to whom and by whom at the common law an assignment of a chose in action could always be made; for the policy of the rule was not supposed to apply to the king. So strictly was this doctrine construed, that it was even doubted whether an annuity was assignable, although assigns were mentioned in the deed cre- ating it. And at law, with the exception of negotiable instru- ments and some few other securities, this still continues to be the general rule, unless the debtor assents to the transfer ; but if he does assent, then the right of the assignee is copiplete at law, so that he may maintain a direct action against the debtor, upon the implied promise to payJiim the same, which results from such assent. But courts of equity have long since totally disregarded this nicety. They accordingly give effect to assignments of choses in action. Every such assignment is considered in equity as in its nature amounting to a declaration of trust, and to an agreement to permit the assignee to make use of the name of the 1 Leland v. Sabin, 7 Foster, 74. 2 ci^ v. Cobb, 4 Mass. 508. [535] § 604 GAKNISHE'E's liability as affected [chap. XXXI. assignor, in order to recover the debt, or to reduce the property into possession.^ § 604. Hence, where it appears that a debt due ftom the gar- nishee to the defendant had been equitably assigned before the garnishment, the court will take cognizance of the assignment and protect the rights of the assignee. For, as the defendant has parted with his interest in the debt, and can no longer maintain an action for it against the garnishee, for his own benefit; and as the plaintiff can acquire no greater interest in the debt than the defendant had at the time of the garnishment ; it results that the garnishee cannot be charged for that which, equitably, he has ceased to owe to the defendant, and owes to another person. The extent to which courts will protect the rights of parties under equitable assignments, is illustrated by the following case : A. made a contract with B. in relation to some wool, the effect of which was, that A. still retained an interest in the same, during the process of manufacturing it. B. agreed to effect an insurance on the wool for the benefit of A., and procured a policy in his own name, in pursuance of that agreement, and for that object. After the making of the policy, and before a loss under it, B. informed A. that he had effected an insurance for A's benefit, pursuant to the previous stipulation. Afterward the wool was destroyed by fire, and the insurance company was sum- moned as garnishee of B. ; and A. became a party to the suit, claiming the insurance money under his arrangement with B. It was held, that A. had an equitable interest in the policy, equiva- lent to that of an assignee of a chose in action, and sufficient to enable him to hold the avails of the same as against the attaching creditor,^ Not only will courts protect equitable assignees, but they will afford remedy against a party who, having notice of an assign- ment of the debt, yet subjects the debtor, through garnishment, 1 2 Story's Equity, §§ lO-IU, 1040. Little, Georgia Decisions, Part IL 90 2 Providence County Bank v. Benson, Forepaugh v. Appold, 17 B. Monroe, G25 24 Pick. 204. See Green v. Gillett, 5 Patten v. Wilson, 34 Penn. State, 209 Day, 485 ; Lamkin r. Piiillips, 9 Porter, Insurance Co. of Ponna. v. Phoenix Ins. 98; Hodson v. McConnell, 12 Illinois, Co., 71 Ibid. 31 ; Burrows f. Glover, 106 170 ; Galena & Cliicago U. R. K. Co. v. Mass. 324 ; Norton v. Piscataqua Ins. Co., Mcnzies, 26 Ibid. 121 ; Carr v. Waugh, 111 Ibid. 532 ; Taft v. Bowker, 102 Ibid. 28 Ibid. 418 ; Cairo & St. L. R. R. Co. v. 217 ; Davis v. Carson, 09 Missouri, 609. Killenberg, 82 Ibid. 295; Whitten v. [536] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 606 in a suit against the assignor, to the payment of a debt. In such a case the Supreme Court of Tennessee sustained a hill in equity by the assignee against the attaching plaintiff, and decreed the payment by him to the assignee of the money recovered through the garnishment. ^ § 605. As a general rule, personal property has, in contempla- tion of law, no locality or situs, but is deemed to follow the person of the owner. Hence it results, that a voluntary transfer or aUenation is governed by the law of the place of his domicile. It is also a general principle, sanctioned and acted on in all civi- lized countries, that the laws of one country will, by what is termed the comity of nations, be recognized and executed in another where the rights of individuals are concerned. There- fore, the law of the place where a personal contract is made, is to govern in deciding upon its validity or invalidity ; and a convey- ance of personal property which is valid by that law, is equally effectual elsewhere. These principles apply to debts and other choses in action, as well as to any other species of personal prop- erty. While the rule that the law of one nation will be carried into effect in the territories of another, is subject to some excep- tions, yet as a general rule it is established, and has an applica- tion to the subject now under discussion, in connection with an assignment of a debt in one State, in such a manner as to be effectual by the laws of that State, but which is wanting in some particular to make it so in another State, where the debtor resides. In such case the assignment will be sustained as against an attaching creditor, residing in the State where the assignment was made ; ^ and also against one residing in the State where the debt, or chose in action, is.^ § 606. In order, however, that the rights of the assignee should be fully protected, it is important that he immediately notify the debtor of the assignment. Though the assignment, as between the parties to it, is complete and effectual from the 1 Haynes v. Gates, 2 Head, 598. wright, 10 Ibid. 19 ; Russell r. Tunno, 2 Van Buskirk v. Hartford Fire Ihs. 11 Richardson, 303. Co., 14 Conu. 583 ; Burlock i-. Taylor, 16 3 Houston v. Nowland, 7 Gill & John- Tick. 335 ; Whipple v. Thayer, Ibid. 25; son, 480; Wilson v. Carson, 12 Maryland, Daniels v. Willard, Ibid. 36; Martin v. 54; Mowrey v. Crocker, 6 Wisconsin, Potter, 11 Gray, 37; Noble v. Smith, 6 326; Princeton Man. Co. v. White, 68 Rliode Island, 446 ; Northam v. Cart- Georgia, 96. [537J § 607 garnishee's liability as affected [chap. XXXI. moment it is made, and the assignor, if he afterward receive payment of the debt, will be obliged to pay the amount to the assignee, yet the debtor is under no obligation to pay the assignee until he receive notice of the assignment. After that, a payment to the assignor will be at the debtor's peril. § 607. The assignment of a debt evidenced by bond, bill, or note is complete by the assignment of the bond, bill, or note, without notice to the debtor ; but as to choses in action not so evidenced, such, for example, as book accounts, or debts due by judgment, in order to a valid assignment of them, as agaiust an attaching creditor, there must be notice to the debtor. If, there- fore, one indebted in such form be summoned as garnishee of his creditor, and have received no notice of an assignment of his debt, a judgment rendered against him as garnishee will protect him from subsequent liability to an assignee.^ If he have received information of an assignment, it is his duty, in answering, to state that fact, so as to guard the rights of the assignee, but more especially his own; for if he fail to do so, and judgment go against him as a debtor of the assignor, it will afford liim no protection against a suit by, and a second payment to, the assignee. 2 The particular shape in which this information may have been received is of no consequence, provided it be shown to have been derived from the assignee or his agent.^ And it is no part of the garnishee's duty (except, perhaps, in those New England States where facts stated in the garnishee's answer are regarded, only so far as he may declare his belief of their truth), to ascertain the truth or falsity of the information, before he determines whether he will state it in his answer. True or false, it should be stated in every case, whether the answer is in itself 1 Woodbriclfre r. Perkins, 3 Day, 3G4 ; Bunker v. Gilmore, 40 Ibid. 88 ; Walters Riclianls v. Griggs, IG Missouri, 416; r.Wasliington Ins. Co., llowa, 404 ; Large Clodfelter v. Cox, 1 Sneed, 330 ; McCoid v. Moore, 17 Ibid. 258 ; Prescott v. Hull, r. Beatty, 12 Iowa, 209 ; Dodd i\ Brott, 1 17 Johns. 284 ; Kiiubrougli v. Davis, 34 Minnesota, 270 ; Penniman v. Smith, 5 Alabama, 583 ; Page v. Thomjison, 43 Lea, 130; llobertson v. Baker, 10 Ibid. New Hamp. 373. 300. ^ Bank of St. Mary v. Morton, 12 2 Nugent V. Opdyke, 9 Robinson (La.), Robinson (La.), 400. Iij Vermont, it was 453; Colvin f.Ricli, 3 Porter, 175; Lnrakin held, that the fact that the information V. Phillips, 9 Ibid. 98; Foster v. Wiiite, came to the garnisliee on a Sunday did Ibid. 221 ; Crayton «•. Clark, 11 Alabama, not make it less effective, than if it had 787; Fowler v. Williamson, 52 Ibid, come on any other day. Crozier v. 10 ; Pitts V. Mower, 18 Maine, 361 ; Shants, 43 Vermont, 478. [538] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 609 conclusive, or may be controverted and disproved. For if the answer be conclusive, and the garnishee fails to state the infor- mation he has received, because he may not believe it to be true, he assumes all the responsibility of the correctness of his belief, not only as to the facts within his knowledge, but as to other facts, of the existence of which he may be ignorant, and which might show his information to be true. And if the answer be not in itself conclusive, but may be controverted and disproved, he should not prejudge the case, and decide that the information is untrue ; but should leave the plaintiff to deny, and the court to adjudicate its truth.i § 607 a. The obligation of the garnishee to state in his answer the fact of his having received information of an assignment of the debt is not dispensed with by the fact that the assignee knew of the garnishment, and might have intervened and asserted his right to the money .^ § 608. An assignment of a debt will protect the rights of the assignee from a subsequent attachment against the assignor, though no notice may have been given to the debtor before the attachment, if it be given in time to enable him to take advan- tage of it before judgment against him as garnishee.^ And it is his duty at any time before such judgment, to make such notice known to the court ; failing in which, the judgment will avail him nothing as a defence against an action by an assignee of the debt.* § 609. An assignment of a debt is usually made in writing, but this formality is not necessary where the debt is evidenced by a 1 Foster r. "Walker, 2 Alabama, 177; That the doctrine stated in the text is Wicks V. Branch Bank, 12 Ibid. 5U4. correct, cannot, I think, be reasonably 2 Large v. Moore, 17 Iowa, 258. doubted ; but in Connecticut and Ver- 3 Dix V. Cobb, 4 Mass. 508 ; Stevens mont, it is held, that an attachment of a V. Stevens,! Ashmead, 190; Pellman v. debt, made before notice of its assign- Hart, 1 Penn. State, 2G3 ; Crayton v. ment, will prevail against the assign- Clark, 11 Alabama, 787 ; Smith v. Ster- ment, though notice be given to the ritt, 24 Missouri, 260; "Walters r. "Wash- debtor before judgment against him as ington Ins. Co., 1 Iowa, 404; Muir v. garnishee. Judah v. Judd, 5 Day, 534; Schenck, 3 Hill (N. Y.), 228; Northam Bishop v. Holcombe, 10 Conn. 444; Van V. Cartwright, 10 Rhode Island, 19 ; Buskirk, v. Hartford F. I. Co., 14 Ibid. Tracy v. McGarty, 12 Ibid. 168; Wil- 141 ; Ward r. Morrison, 25 "^"ermont, 593. liams V. Pomeroy, 27 Minnesota, 85. * Crayton v. Clark, 11 Alabama, 787. [539] § 610 garnishee's liability as affected [chap. XXXI. Avriting ; a delivery of which to the assignee, for a valuable con- sideration, will operate an assignment, so far as to enable him to maintain an action upon it in the name of the assignor.^ Wherever, therefore, a writing given b}'- a garnishee to the defendant, has been bond fide transferred by delivery to a third person, the garnishee cannot be charged. Thus, where the evidence of the garnishee's indebtedness consisted of a certificate of a certain amount of lumber cut for him by the defendant, with a statement of what was to be paid for it, attested by third persons ; and before the garnishment this certificate was assigned by delivery ; the court held the assignment good, and discharged the garnishee.^ So, where a lessor delivered to his creditor a lease, on which rent was due, to enable him to receive the same in part payment of the lessor's debt to him, and the lessee knew of the delivery for that purpose, and agreed to account to the creditor for the rent due ; it was held a good equitable assignment of the rent as against an attaching creditor of the lessor.^ So, where a railroad company issued to an employee a certificate of indebted- ness, which the employee endorsed and sold ; it was held, that the company could not be charged as garnishee of the employee under an attachment served after the sale of the certificate^ § 610. It is, however, impracticable thus to transfer by delivery a book account or other debt, not evidenced by writing. As a symbolical delivery of personal property, so situated that an ac- tual delivery of it could not be made, has been regarded as suffi- cient, so the assignee of a judgment, or of a book debt, may, upon the same principle, be enabled to establish his rights with- out proof of an actual delivery. For a delivery of a transcript of them would not prove a delivery of the debt or judgment. It would only prove a delivery of something indicative of their ex- istence and of the intention of the parties. Other evidence, showing that the transfer had been completed, would be suffi- cient.^ In all such cases the assignment should, for greater cer- 1 King r. Murphy, 1 Stewart, 228 ; » Dennis v. Twichell, 10 Metcalf, 180. Baylcy on Bills, 2d Am. Ed. 102 ; Norton * Cairo & St. Louis R. R. Co. v. Killen- 1-. Piscataqua Ins. Co., Ill Mass. 532. berg, 82 Illinois, 295. 2 Littk'field V. Smith, 17 Maine, 327. ^ Porter v. BuUard, 20 Maine, 448. See Hardy r. Colby, 42 Ibid. 381 ; Byars V. Griffin, 81 Mississippi, G03. [540] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 610 tainty, be written ; though, as we shall presently see,^ a verbal assignment, if assented to by the debtor, will suffice. An assio-nment of a cliose in action, or of a fund, need not be by any particular form of words, or particular form of instru- ment. Any binding appropriation of it to a particular use, by any writing whatever, is an assignment, or what is the same, a transfer of the ownership. Thus, a power of attorney to collect moneys and pay them over to certain named parties, was held, as soon as the moneys were collected, to be in effect an assign- ment.2 So, a power of attorney, irrevocable, authorizing the attorney to collect a sum of money, to his own use, is a con- structive assignment of the money to him.^ So, a power of at- torney to receive all the money due from A. to the constituent, and to give a discharge therefor in the constituent's name, with a clause stating that this " is an assignment of the same," con- stitutes an assignment of the debt to the attorney, though the power is not in terras irrevocable, and does not expressly author- ize the attorney to receive the money to his own use.* So, where a sfarnishee disclosed indebtedness to the defendant, but stated that the defendant had drawn an order on him to pay the balance of his account to a third person ; and it was objected that this was no assignment, because it did not purport to be for value received, and because it did not appear but that the drawee named in the order was the servant of the defendant, to receive the money for the defendant's use ; it was held, that there was a prima facie assignment, and that the words value received were not necessary.^ So, where A. was indebted to B. on a book ac- count, and B. drew out a bill of the items, and wrote at the bot- tom a request to A. to pay the amount to C. ; and notice of the assignment was given to A.*; and afterwards A. was garnished in a suit against B., and was charged as garnishee, and paid the money ; and suit was then brought iu B.'s name, for the use of C, to recover the money ; it was held, that the order being drawn for the whole amount due, was an assignment of the debt, and that A. was bound to know that an assignment was intended.^ 1 Post, § (il4. ^ Adams v. Eobinson, 1 Pick. 461. See 2 Watson V. Bagaley, 12 Penn. State, Johnson v. Thayer, 17 Maine, 401. 164. ** Robbina v. I3acon, 3 Maine, 046 ; Con- 8 Gerrish v. Sweetser, 4 Pick. 374. way v. Cutting, 51 New Hamp. 407. * Weed V. Jewett, 2 Metcalf, 608. See People V. Tioga C. P., 19 Wendell, 73. [541] § Gil garnishee's liability as affected [chap, xxxl § 611. It is not, however, every order which may be drawn on a party having moneys of, or indebted to, the drawer, which will operate an assignment of the money or debt. A bill of ex- change, for instance, is not an assignment of the fund on whicli it is drawn, or any part thereof, until accepted by the drawee.^ If, liowever, an order be drawn for the whole of a designated fund in the hands of a drawee, it is an assignment, whether ac- cepted by the latter or not ; ^ but it is well settled that where an order is drawn on either a general or particular fund, /or a part onlu^ it does not amount to an assignment of that part, unless the drawee consent to the appropriation by an acceptance of the draft ; or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the par- ties, as a part of their contract.^ Therefore, where A., under an attachment against B., summoned a bank as garnishee, which, at the time, had money of B. on deposit, and after the garnishment, A., B., and the cashier of the bank being together at a place dis- tant from the bank, B, drew a check on the bank for a certain sum, and delivered it to A., in payment of his debt to A., and A. receipted for it, and signed an order to dismiss his attachment upon the amount of the check being transferred to his credit on the books of the bank, and delivered the check to the cashier for the purpose of having the transfer made when he should return to the bank ; and, before his return, other creditors of B. had garnished the bank ; but, notwithstanding, the cashier charged the check to B.'s account and carried the same amount to the credit of A. ; it was held, that the check was no assignment of any part of B.'s money in the bank until it was presented and paid, and that the subsequent attachers were entitled to the money, notwithstanding the entries made on the books of the bank.^ And in New York, in a similar case it was held, that 1 Mantleville v. 'Wclcli, 5 Wbeaton, Kingman v. Tcrkins, 105 IMnss. Ill ; Gar- 277; Cowpertlivvaite v. Slieffiekl, 1 Sand- land v. Harrington, 51 Kew Hamp. 409. ford Sup. Ct. 416 ; .3 Comstock, 24-3 ; » Poydras r. Delaware, 13 Louisiana, Sands v. Mattliews, 27 Alabama, SD'J ; 98; Mandeville i'. Welcii, 5 Whcaton, Luff y. Pope, 5 Hill (N. Y.), 413 ; 7 Ibid. 277 ; Cowpertiiwaite v. Slieffield, 1 Sand- 577; Winter v. Drury, 1 Solden, 525; ford Sup. Ct. 41G ; 3 Comstock, 243; Kimball v. Donald. 20 Missouri, 577; Gibson v. Cooke, 20 Pick. 15; Tripp v. Wilson V. Carson, 12 Maryland, 54. Brownell, 12 Cushing, 376; Chapman r. 2 McMenomy v. Ferrers, 3 Johnson, White, 2 Sclden, 412. 71 ; Miller v. Hubbard, 4 Crancli C. C. * BuUard v. liandall, 1 Gray, 005. 451 ; Macomber v. Doane, 2 Allen, 541 ; [542] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § G12 a check on a bank is a bill of exchange payable on demand, the drawee of which owes no duty to the holder until the check is presented and accepted ; and that the fact that a clerk of the bank told the payee of the check that it "was in order and would be paid ; " in consequence of which the holder, without requiring a written acceptance, took the check away and deposited it in his own bank ; did not transfer the amount of the check to the holder so as to defeat an attachment served on the bank before the check was presented for payment. ^ And where a bank certifies a check, and after doing so an attachment against the depositor is served on it, whether the fact of its certification of the check will protect the fund from the attachment will depend on whether the check had, before the service of the attachment^ reached the hands of a bond fide holder for value. If it had, the at- tachment will not hold the fund ; but if it appear that the fund, though transferred on the books of the bank to the credit of the holder of the check, was in reality for the benefit of the drawer of the check, the attachment will be effectual.^ § 612. It is not necessary that the debt assigned should be due at that time of the assignment, in order to protect the rights of the assignee from an attachment against the assignor. A debt afterwards to accrue may be effectually assigned. Thus, Avhere A. was employed as a laborer by B., and being indebted to C, executed a power of attorney authorizing C. to receive and re- ceipt for all sums of money then due or thereafter to become due to him, and stating that the power was an assignment of the money ; and B. agreed to pay A.'s wages to C. ; it was decided that tlie assignment was valid, and that B. could not be lield as garnishee of A.^ So, where A. was employed as an assessor of the city of Mobile, and before the service required of him in that capacity had been performed, he drew an order on the corpora- tion in favor of B. for the agreed compensation for his services, which was accepted by the mayor of the city ; it was decided that the assignment of the debt was complete, and that the cor- 1 Duncan v. Berlin, 60 New York, 151. Lynch, 5 Ibid. 49 ; Lannan v. Smith, 7 2 Gibson v. Nat. Park Bank, 49 New Ibid. 150 ; Wallace v. Walter Haywood York Superior Ct. 429. C. Co., 16 Ibid. 209 ; Caliill v. Bigelow, 3 Weed I'. Jewett, 2 Metcalf, 608. See 18 Pick. .369 ; Van Staphorst v. Pearce, 4 Emery r. Lawrence, 8 Gushing, 151 ; Hart- Mass. 258; Johnson v. Pace, 78 Illinois, ley V. Tapley, 2 Gray, 5G5 ; Taylor v. 143. [543] § 614 garnishee's liability as affected [chap. XXXI. poration could not be held as garnishee of A.^ But where A., being indebted to G. H. P., & Co. gave an order on his employer to pay to them all wages due him at the date of the order, or thereafter becoming due to him ; and the employer accepted the order in writing ; and thereafter the debt to G. H. P., & Co. was paid ; and there were changes in the membership of that firm ; and there was a verbal agreement between A. and them that the order should continue in force ; but no notice of this agreement was given to A.'s emploj-er ; it was held, that this agreement was inoperative to transfer the legal title as against attaching creditors.^ § 613. But while it is true that a debt to become afterwards due may be assigned, it is necessary that, at the date of the assignment, the contract out of which the debt is to grow should have some existence. A mere possibility of future indebtedness, without any subsisting engagement upon which it shall accrue, cannot be assigned. The debt may be conditional, uncertain as to amount, or contingent ; but to be the subject of an assignment, there must be an actual or possible debt due, or to become due. Therefore where A. executed a paper in July, purporting to transfer to B. " all claims and demands which A. now has or which he may have against C. on the first day of January next, for all sums of money due and to become due to A. for services in laying common sewers ; " with a power of attorney irrevocable to receive tlie same ; and it was altogether uncertain whether C. would afterwards employ A. at all ; and the existence of any debt from him to A. after tlie date of the assignment depended wholly on A.'s being so employed; it was decided that the trans- fer to B., as against a subsequent attaching creditor, carried only what was due at its date, and did not reach any thing becoming due to A. afterwards, from subsequent employment.^ § 614. When a debt is not evidenced by a writing, it may be assigned verbally, if tlie debtor assent. Where such assent is given, the assignment is complete, and the debtor is bound to 1 Payne v. Mobile, 4 Alabama, 333. - Adams v. Willimantic Linen Co., 46 See Tucker v. Marstcllcr, 1 Cranch C. C. Conn. 320. 254; Garland v. Ilarrinjiton, 51 New ^ MiiUiall v. Quinn, 1 Gray, 105. See Hanip. 409; Kane v. Clougli, 36 Miclii- Herbert r. Brnnson, 125 Mass. 475; Eagan gan, 436. v. Luby, 133 Ibid. 543. [544] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 615 pay to the assignee, and consequently cannot be charged as gar- nishee of the assignor. Thus where the answer of a garnishee admitted that he had been indebted to the defendant, but stated that before he Nvas garnished there was a verbal agreement between him and the defendant and a creditor of the defendant, that the debt should be paid to the creditor ; the answer was held to be evidence in the garnishee's favor to show that he was not indebted to the defendant. This was in effect giving to the arrangement the character and force of an equitable assignment of the debt ; otherwise the answer was inadmissible as evidence to the purport stated.^ So, where A. & B. were partners, and upon a dissolution of the firm, A. was found indebted to B., and B. requested him to pay the amount to C, his creditor, who was present, and A. repHed that it was immaterial to him to whom he paid the money ; it was held to be a transfer of the debt, so as to prevent A. from being charged as garnishee of B."^ So, if by agreement between both the partners and a debtor of the firm, the debt of the latter is to be paid to one of the partners after a dissolution of the firm, the debtor may be held as garnishee of him to whom it is so to be paid.^ § 615. In any case of the transfer of evidences of debt, w^here the assignee undertakes to assert title through such transfer, the good faith of the transaction may, of course, be the subject of inquiry, and must be shown, if sufficient evidence be presented to cast suspicion upon it. The assignee will, in such case, be entitled, m the first instance, to the benefit of all presumptions in his favor, but those presumptions may be overthrown by proof, as in any other transaction. If the assignment be direct from the debtor to him, and made without consideration, or with a fraudulent intent, known to the assignee, he cannot avail himself of it to defeat an attachment. And the infirmity of the transac- tion will affect the title of a subsequent purchaser, having knowl- edge of the fraudulent character of the original assignment. But no such result will ensue, wdiere the subsequent purchaser has 1 Black V. Paul, 10 Missouri, 103. See Hutchins v. "Watts, .^5 Ibid. 360 ; Ponton Curie V. St. Louis Perpetual Ins. Co., 12 r. Griffin, 72 North Carolina, 362 ; Putney Ibid. 578 ; Porter v. Bullard, 26 Maine, v. Farnliam, 27 Wisconsin, 187 ; Balliet v. 448; Rudd v. Paine, 2 Cranch C C. 9 ; Scott, 32 Ibid. 174. Newby v. Hill, 2 Metcalfe (Ky.), 530; 2 Lovely r. Caldwell, 4 Alabama, 684. Noyes v. Brown, 33 Vermont, 431 ; 3 Marlin v. Kirksey, 23 Georgia, 164. 35 [5^5] § 615 a garnishee's liability, etc. [chap. xxxi. not such knowledge. He may know tliat the debtor transferred the paper without consideration, but that will not prevent his acquiring, for value, a complete title ; for such transfer is not necessarily fraudulent i^er se ; and the purchaser is not bound to inquire into the solvency of the assignor, or into the circum- stances which might give a fraudulent aspect to the transaction. Thus, where A., who was insolvent, transferred to B., as a gift, a clieck on a bank, and B., for value sold the check to C, who knew that B.'s title was that of a donee, without consideration, but had no knowledge that the gift was in fraud of A.'s creditors ; it was held, that C.'s title was valid and effectual against an attachment, under which the drawer of the check was summoned as garnishee of A.^ § 615 a. All the views expressed in this chapter will have been seen to refer to cases of assignments of debts made before the garnishment of the debtor. No assignment made after that event can have any effect to deprive the attachment plaintiff of his recourse against the garnishee. ^ 1 Fulweiler v. Hughes, 17 Penn. State, 2 Stevens v. Pugh, 12 Iowa, 430. 440. [546] CHAP. XXXn.] LEGAL PEOCEEDLNGS, ETC. § 618 CHAPTER XXXII. THE garnishee's LIABILITY, AS AFFECTED BY THE COMilENCE- MEXT, PENDENCY, AND COMPLETION OF LEGAL PROCEEDINGS AGAINST HIM, BY THE DEFENDANT, FOR THE RECOVERY OP THE DEBT. § 616. It frequently happens that when a garnishee is sum- moned, a suit is pending against him on the part of the defendant, or that the defendant has obtained a judgment against him for the debt in respect of which he is garnished. Numerous cases of this description have received adjudication, and the decisions are by no means consentaneous. We will consider, I. Tlie effect of the pendency of a suit by the defendant against the garnishee ; and, II. The question whether a judgment debtor can be held as garnishee of the judgment plaintiff. § 617. I. Tlie Effect of the Pendency of a Suit hy the Defendant against the Garnishee. It is an invariable and indispensable principle, that a garnishee shall not be made to pay his debt twice. Consequently, when he is in such a situation that, if charged as garnishee, he cannot defend himself against a second payment to his creditor, he should not be charged. This prin- ciple has been applied, as we shall presently see, to cases where legal proceedings were pending against the garnishee on behalf of the defendant. § 618. A case is reported as having been decided in Massachu- setts, in 1780, taking the broad ground that a garnishee cannot be charged on account of a debt, for the recovery of which an action, previously commenced by the defendant, is pending at the time of the garnishment. This was under the old provincial trustee act of 32 Geo. § II. ; ^ but it was overruled in 1828, under the then existing statute.^ In Xew Hampshire, likewise, the 1 Gridley i-. Harraden, 14 Mass. 406. - Thorndike v. DeWolf, 6 Pick. 120. [547] § 619 LEGAL PROCEEDINGS [CHAP. XXXII. same ground was at one time assumed,^ but afterwards abandoned.^ § 619. There came before the Supreme Court of the United States, a case which might seem to favor the view first entertained in Massachusetts and New Hampshire, but it is essentially different. A. sued B. in the District Court of the United States for Alabama. After the action was brought, B. was summoned as garnishee of A., in a county court of Alabama, and judgment was there rendered against him. He then pleaded the judgment in bar of the action pending in the United States Court, and the court, on demurrer, held the plea bad. The Supreme Court on this point say : "The plea shows that the proceedings on the attachment were instituted after the commencement of this suit. The jurisdiction of the District Court of the United States, and the right of the plaintiff to prosecute his suit in that court, having attached, that right could not be arrested or taken away by any proceedings in another court. This would produce a collision in the jurisdiction of courts, that would extremely emban^ass the administration of justice." The court, however, expressly recognize the doctrine that if the garnishment had taken place before the action was brought, it would have been sufficient in abatement, or bar, as the case might be. They say : " If the attachment had been con- ducted to a conclusion, and the money recovered of the defendant before the commencement of the present suit, there can be no doubt that it might have been set up as a payment upon the note in question. And if the defendant would have been protected 2:>ro tanto, under a recovery had by virtue of the attachment, and could have pleaded such recovery in bar, the same principle would support a plea in abatement, of an attachment pending prior to the commencement of the present suit. The attachment of the debt, in such case, in the hands of the defendant, would fix it there in favor of the attaching creditor, and the defendant could not afterwards pay it over to the plaintiff. The attaching cred- itor would, in such case, acquire a lien upon the debt, binding upon the defendant, and which the courts of all other govern- ments, if they recognize such proceedings at all, could not fail to regard. If this doctrine be well founded, the priority of suit will 1 Burnhara v. Folsom, 5 New Hamp.* 2 Foster v. Dudley, 10 Foster, 4G3. 5G6. See Smith v. Durbridge, 26 Louisiana Annual, 681. [548] CHAP. XXXII.] BY DEFENDANT AGAINST GARNISHEE. § 620 determine the right. The rule must be reciprocal; and where the suit in one court is commenced prior to the proceedings under attachment in another court, such proceedings cannot arrest the suit ; and the maxim qui prior est tempore, potior est jure, must govern the case." ^ Tlie difference between this case and those first decided in New Hampshire and Massachusetts, lies in the two proceedings in Alabama taking place in different jurisdictions ; and the whole decision of the Supreme Court of the United States was based on the conflict of jurisdiction, which would grow out of a practice such as that passed upon by that tribunal. In ^Massachusetts, it is now held, that the liability of a defend- ant in a suit pending in that State, is not discharged by his pay- ment of a judgment rendered against him in another State, as garnishee of the plaintiff, in a proceeding commenced after the institution of the suit in Massachusetts; where the garnishee does not make known the existence of that suit ; ^ and that a garnishee will not be charged in Massachusetts for a debt upon which a suit was instituted against 'him in another State, before the com- mencement of the garnishment proceeding, and to which he has appeared.^ § 620. In ISIassachusetts, the liability of a garnishee where an action on behalf of the defendant is pending against him, turns upon the state of the pleadings in the action at the time of the garnishment. If the pleadings are in such state that the garnishee can plead the garnishment in bar of the action, he can be charged; otherwise not.* Hence, in the first reported case of the kind in that State, where the garnishee had been sued by the defendant, and, before the garnishment, the action had been referred by rule of court, in which rule it was agreed that judgment should be entered up according to the report of the referees, and execution issued thereon ; it was determined that the garnishee could not be charged, because in this state of the action no day for pleading remained for the garnishee, and the law furnished him no defence 1 Wallace v. McConnell, 13 Peters, Foster, 48 Michigan, 273 ; Custer r. Wliite, 136. See Bingham v. Smith, 5 Alabama, 49 Ibid. 262. 651 ; Greenwood v. Rector, Hempstead, ^ "Whipple v. Bobbins, 97 Mass. 107. 708 ; "Wood v. Lake, 13 Wisconsin, 84 ; ^ American Bank v. Rollins, 99 Mass. Arthur v. Batte, 42 Texas, 159 ; Noyes v. 313. * Thomdike v. De Wolf, 6 Pick. 120. [549] § 620 LEGAL PROCEEDINGS [CHAP. XXXII. against the defendant's demand of judgment.^ The same rule was enforced in a case of simihir facts, where the garnishment took place after the award, of the referees, but before judgment rendered thereon.^ In another case, where, after issue joined, the defendant was summoned as garnishee of the plaintiff, and after verdict for the plaintiff, the defendant moved in arrest of judgment, on the ground of the garnishment, the same court held, that the motion could not prevail, and that the garnishment was void, because made after issue joined, when the garnishee could not defend himself against a recovery in the action, by the trial of any issue in fact or in law, on any plea which he had opportunity to plead. ^ Where, however, the defendant in a pending action was gar- nished, and, before the action was brought to a judgment, he was charged as garnishee, and paid the amount recovered against him as such, it was held to be a good bar to the action.* And where the garnishee is, at the time of the garnishment, indebted to the defendant, a payment by him of a judgment sub- sequently recovered, will not discharge him. Thus, where A. was summoned as garnishee of B., pending a suit against him by B., and it was agreed between A. and the plaintiff in attach- ment, that the garnishment proceedings should be continued until the suit of B. against A. should be determined ; and B. afterward obtained judgment against A., who appealed there- from, and gave bond to abide the decision of the appellate court ; and A. then answered as garnishee, denying that he was liable on the contract on which B. had obtained a judgment, and refer- ring to his appeal from the judgment ; and, at a subsequent time further answered, that he had settled the appeal, by paying the amount of the judgment appealed from ; it was held, that A. was liable as garnishee of B. The court fully recognized the principles they had previously laid down, in regard to summon- ing a person as garnishee pending an action against him; but held, that the garnishee, by his mistake of the nature of his defence against B.'s demand, or by his inattention, had placed himself beyond tlie protection of those principles.^ 1 Howell V. Freeman, 3 Mass. 121. * Foster v. Jones, 15 Mass. 185. 2 McCaffrey v. Moore, 18 Pick. 492. ^ Locke v. Tippets, 7 Mass. 149. 8 Kidd V. Shepherd, 4 Mass. 238. [550] CHAP. XXXII.] BY DEFENDANT AGAINST GARNISHEE. § 620 In Maine, the mere fact of issue being joined, is considered to have no effect in exempting the garnishee from liability.^ In Vermont and New Hampshire, on the other hand, the courts seem disposed to adopt the Massachusetts rule, so far as to dis- charge the garnishee, where the condition of the action against him is such that he cannot plead the garnishment in bar thereof.^ Hence, where the garnishee disclosed that the defendant had commenced a suit in chancery against him, which, before the gar- nishment, had been set down for trial, and between the time of the garnishment, and that of filing the garnishee's answer, had been heard by the chancellor, and continued for his decision ; the court decided that the garnishee could not be charged, because the proceedings in the chancery court could not be arrested, or its decree anticipated, and the garnishee, if charged, might be compelled to pay the demand a second time.^ In Pennsylvania, the pendency of an action by the defendant against the garnishee, at the time of the garnishment, will not prevent the garnishee's liability. The court there, acting upon probably the first case in this country in whicli this question was involved, reject the English doctrine, that a debt in suit cannot be attached, as inapplicable to the state of things here. The doctrine in England grows out of the fact that garnishment there is the offspring of special and local custom, and takes place in inferior courts; and the courts of general jurisdiction will not permit suits depending before them to be affected by the process of inferior tribunals exercising a jurisdiction of the kind belong- ing to the courts of the sheriff and lord mayor of London.^ In Tennessee, the same view is taken as in Pennsylvania; ^ and so in Alabama and Kansas, where the suit and the garnishment are 1 Smith V. Barker, 10 Maine, 458. the amount of his claim ; but that the 2 Trembly v. Clark, 13 Vermont, 118 ; court will order execution stayed, until Foster v. Dudley, 10 Foster, 463; Thayer the plaintiff shall cause the defendant to V. Pratt 47 New Ilamp. 470. be released from the garnishment. 3 Wadsworth r. Clark, 14 Vermont, * McCarty v. Emlen, 2 Dallas, 277 ; 139. In Spicer v. Spicer, 23 Vermont, 2 Yeates, 190 ; Crabb v. Jones, 2 Miles, 678, it was held that when a defendant, 130; Sweeny i-. Allen, 1 Penn. State, 380. in a suit pending, is summoned as gar- ^ Huff v. Mills, 7 Yerger, 42 ; Penni- nishee of the plaintiff, and is cliargcd for man v. Smith, 5 Lea, 130. See Thrasher the full amount of the plaintiff's claim v. Buckingham, 40 Mississippi, G7 ; Lieber against him, and the judgment charg- r. St. Louis A. .Ss M. Assoc'n, 36 Missouri, ing him remains unsatisfied ; judgment 382. should be rendered for the plaintiff for [551] § 622 LEGAL PROCEEDINGS [CHAP. XXXII. in the same court ; ^ but not where they are in different courts ; at least when the debt is controverted.^ § 621. We may state, then, as the result of these decisions, 1. That the pendency, in the same court, of an action on behalf of the defendant against the garnishee, will not preclude the gar- nishee's being charged ; 2. That w^here the action is pending in one court and the garnishment in another, and the courts are of different jurisdictions, that which was first instituted will be sus- tained ; and, 3. That when the action is in such a situation that the garnishee, if charged, cannot avail himself of the judgment in attachment as a bar to a recovery in the action, he cannot be held as garnishee. § 622. II. Can a Judgment Debtor he held as Garnishee of the Judgment Creditor? On this point the decisions differ. Where, as in New Hampshire, a person against whom suit has been brought cannot be charged as garnishee ; and where, as in Mas- sachusetts and Vermont, the garnishee in such case cannot be made liable, if the pending action be in such situation that the garnishment cannot be pleaded therein; and where the judgment is in one court and the garnishment in another ; it might be expected to be decided that the judgment debtor could not be charged as garnishee of the judgment creditor. In New Hampshire and Venfiont, the question has not directly come up, though in the latter State the court, on one occasion, used language which might be construed to authorize the garnish- ment of a judgment debtor. They say: " The statute makes all the goods, chattels, rights, or credits of the defendant in the hands of the trustee liable for the debts of the defendant. Hence, if the trustee is indebted to the defendant, he is liable to be sum- moned as trustee without regard to the nature of the indebted- ness, whether by record, specialty, or simple contract. No exception is made whether a suit is depending in favor of the defendant, or whether payable or not." ^ In Massachusetts, it was held, that one against whom an exe- cution on a judgment was in the hands of a sheriff, could not be 1 Hitt V. Lacy, 3 Alabama, 104 ; Mc- 2 Bingham v. Smitli, 5 Alabama, 651. Donald V. Carney, 8 Kansas, 20. » Trombly v. Clark, 13 Vermont, 118. [552] CHAP. XXXTI.] BY DEFENDANT AGAINST GARNISHEE. § 623 charged as garnishee of the plaintiff therein ;i and that a judg- ment debtor, against whom an execution might issue, could not be so charged.^ Justice Story, in a case which came before the Circuit Court of the United States in Rhode Island, held the same ground,^ as did the Supreme Courts of New Jersey,* Arkan- sas,^ and Oregon.^ § 623. On the other side we find the courts of Connecticut, Pennsylvania, Delaware, Alabama, Mississippi, Indiana, Illinois, and Kansas. In the first-named State, the court thus announced its views : " By the custom of London, from which our foreign attachment system was principally derived, it is said, that a judg- ment debt cannot be attached ; and the same has been holden by the courts in . Massachusetts. A fair, and, as we think, very obvious construction of our statute on this subject, as well as the general policy of our attachment laws, leads us to a different conclusion. It is enacted that ' where debts are due from any person to an absent and absconding debtor, it shall be lawful for any creditor to bring his action against such absent and abscond- ing debtor ; ' and that ' any debt due from such debtor t® the defendant shall be secured to pay such judgment as the plaintiff shall recover.' The provisions of this statute were extended, in 1880, to the attachment of debts due to such persons as should be discharged from imprisonment. The language of this statute clearly embraces judgment debts as well as others, and the reason and equity of it are equally extensive. A judgment debt is Hqui- dated and certain, and, in ordinary cases, little opportunity or necessity remains for controversy respecting its existence, char- acter, or amount. The policy of our laws has ever required that all the property of a debtor, not exempted by law from execu- tion, should be subject to the demands of his creditors, and that every facility, consistent with the reasonable immunities of debtors, should be afforded to subject such property to legal process. " It is true, as has been contended, that to subject judgment debts to attachment, and especially those upon which executions 1 Sharp V. Clark, 2 Mass. 91. 150 ; Black v. Black, 82 New Jersey 2 Prescott V. Parker, 4 Mass. 170. Equity, 74. 3 Franklin v. Ward, 3 Mason, 136. ^ Trowbridge v. Means, 5 Arkansas * Shinn v. Zimmerman, 3 Zabriskie, 135 ; Tunstall v. ]\Ieans, Ibid. 700. «> Norton v. "Winter, 1 Oregon, 47. [.^53J § 625 LEGAL PEOCEEDINGS [CHAP. XXXII. have issued, may, in some cases, produce inconvenience and embarrassment to debtors, as well as to creditors. Such conse- quences have resulted from the operation of our foreign attach- ment system, in ordinary cases ; and this was foreseen and has been known to our legislators, by whom this system has been introduced, continued, and extended ; but the general interest of the community in this respect has been considered as paramount to the possible and occasional inconveniences to which indi- viduals may be sometimes subjected. A judgment debtor, in such cases, is not without relief; he may resort, whenever serious danger or loss is apprehended, either to his writ of audita querela, or to the powers of a court of chancery for appropriate relief." ^ § 624. The same views, .substantially, iufluenced the courts of Pennsylvania,^ Delaware,^ Alabama** Mississippi,^ Indiana,''^ Illi- nois,^ and Kansas,^ to the same conclusion ; and while there is much force in the contrary reasons, it is difficult to lay aside the demands of public polic}^ in favor of subjecting all of a debtor's effects, — save such as are by law expressly exempted, — to the payment of his debts. A striking illustration of the disadvan- tage of exempting judgment debts from attachment, would be in a case, by no means improbable, of a debtor having no visible property, and no debts due him but judgment debts, but enough of such debts to pay his own liabilities. Upon what principle of right or justice, under such circumstances, ought his creditors to be denied access by this process to the debts thus due him ? Is the temporary inconvenience to which his debtors might be exposed sufficient to outweigh all the considerations in favor of subjecting them to the payment of debts, without the payment of which a fraud may be perpetrated in defiance of law ? § 625. However strongly these reasons apply to the case of a garnishment of the judgment debtor in the same court in which the judgment was rendered, their force is lost when the judg- 1 Gager v. Watson, 11 Conn. 168. < Skipper v. Foster, 29 Alabama, 330; 2 Crabb v. Jones, 2 Miles, 130; Sweeny Calhoun v. Whittle, 5G Ibid. 138. V. Allen, 1 Penn. State, 380 ; Fithian v. ^ Gray i-. Henby, 1 Smedes & Marshall, New York & Erie R. R. Co., 31 Ibid. 114. 598 ; O'Brien v. Liddell, 10 Ibid. 371. 8 Belcher v. Grubb, 4 Harrington, 461 ; « Halbert v. Stinson, 6 Blackford, 398. Webster v. MoDaniel, 2 Delaware Ch'y, ^ Minard v. Lawlcr, 20 Illinois, 301. 2<.)7. 8 Keith v. Harris, Kansas, 386. [554] CHAP. XXXri.] BY DEFENDANT AGAINST GARNISHEE. § 626 ment is in one court and the garnishment in another. There a new question springs up, growing out of the conflict of jurisdic- tion which at once takes place. Upon what ground can one court assume to nullify in this indirect manner the judgments of another? Clearly, the attempt would be absurd, especially where the two courts were of different jurisdictions, or existed under diiferent governments. Take, for example, the case of a court of law attempting to arrest the execution of a decree of a court of equity for the payment of money, by garnishing the de- fendant ; or that of a State court so interfering with the judgment of a Federal court, or vice versa : it is not to be supposed that, in either case, the court rendering the judgment or decree would or should tolerate so violent an encroachment on its prerogatives and jurisdiction. This question arose in South Carolina, and it was there held, that where the fund sought to be reached is in another court, it cannot be attached ; ^ and hence that a judg- ment in a Federal court is not the subject of attachment in a State court.2 And in Rhode Island and New Jersey it was held, that a party could not be charged there as garnishee, against whom a judgment had been obtained in another State ;'^ and in Tennessee, that a judgment debtor in a court of record could not be subjected to garnishment in a suit before a justice of the peace ; * and in Michigan, that a defendant in a judgment ren- dered by a justice of the peace, could not be garnished in a suit before another justice of the peace.^ § 626. It would seem to be almost needless to remark, that the only way to subject a judgment to attachment for the payment of a debt of the plaintiff therein, is by garnishment of the de- fendant. Service of the attachment on the attorney who obtained the judgment, or on the clerk of the court in which the judgment was obtained will not reach the judgment;^ and much 1 Young V- Young, 2 Hill (S. C), 42G. 3 American Bank v. Snow, 9 Rhode Is- - Burrell v. Letson, 2 Speers, 378. See land, 11 ; Shinn v. Zimmerman, 3 Zabris- Thomas v. Wooldridge, 2 Woods, G67 ; kie, 150. Perkins v. Guy, 2 Montana, 16 ; Henry v. * Clodfelter t'. Cox, 1 Sneed. 3-30. Sed G. P. M. Co., 15 Federal Reporter, 649. coritra, Luton v. Hoclin, 72 Illinoi.'?, 81. But the Supreme Court of Pennsylvania ^ Sievers v. Woodburn S. W. Co., 43 held, that a judgment debtor in a judg- Michigan, 275. ment recovered in New York, could be ^ In re Flandrow, 27 New York Su- charged as garnishee in Pennsylvania, preme Ct. 36 ; affirmed in 84 New York, Jones V. New York & Erie R. R. Co., 1 1 ; Daley v. Cunningham, 3 Louisiana Grant, 457. Annual, 55. [555] § 627 a LEGAL PROCEEDINGS, ETC. [CHAP. XXXII. less would a seizure of the judgment record have that effect, or be at all admissible.^ § 627. Where it is sought to charge a judgment debtor as garnishee, and the fact of indebtedness is in issue, the judgment in favor of the attachment defendant against the garnishee makes out a jyrimd facie case against the latter: if he has discharged it, he must show it.^ § 627 a. A verdict against a defendant in a libel suit cannot authorize his garnishment as a debtor of the plaintiff. Until a judgment is entered on the verdict there is no indebtedness.^ 1 Hanna v. Bry, 5 Louisiana Annual, » Detroit P. & T. Co. v. Keilly, 46 651. Michigan, 459. 2 O'Brien v. Liddell, 10 Smedes & Mar- shall, 371. [556] CHAP. XXXin.] ANSWER OF THE GARNISHEE. § 629 CHAPTER XXXIII. ANSWER OF THE GARNISHEE. § 628. In most of the States, the manner in which a garnishee responds to the proceedings against him, is by a sworn answer to interrogatories propounded to him. This answer must be made by the garnishee in person ; the power to make it under oath cannot be conferred on another.^ By the custom of London the garnishee might plead that he had no moneys of the defendant in his hands at the time of the garnishment, or at any time since, and put the plaintiff to prove any money in his hands ; or he might discharge the attachment by waging of law, that is, com- ing into court and swearing, that at the time of the attachment made, or at any time since, he had not, owed not, nor did detain, nor yet has, or owes, or does detain from the defendant any money .2 Pleading to the garnishment is still practised in some States, but in far the larger number the better mode of respond- ing by answer is established. The present chapter will, there- fore, be devoted to the consideration of the Answer of the Garnishee. This subject will be treated under the following heads : — I. What the garnishee may be required to state, and may, ex mero motu, state in his answer. II. What he may not be required to state in his answer. III. Of amending the answer. IV. The effect of the answer. V. The construction to be given to the answer. § 629. I. What the Garnishee may he required to state and niay^ ex mero motu, state in his Answer. It is the duty of a garnishee to state, with entire accuracy and distinctness, all facts that may be necessary to enable the court to decide intelligently the ques- tion of his liability. It is no less his interest to do so ; for, should 1 Dickson v. Morgan, 7 Louisiana Annual, 490. 2 Priv. Lond. 258. [557] § 630 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. the defendant subsequently institute an action against liim for the recovery 'of the debt or property in respect of which the gar- nishee was made liable as such, it would be of the first im- portance that the record in the attachment suit should show conclusively the ground upon which the garnishee was charged. And for the want of such accuracy and distinctness, a garnishee may be charged when he ought not to be, or may escape liability when in justice he should be charged. § 629 a. No statements or representations made to the plaintiff by the garnishee, before his garnishment, as to his indebtedness to the defendant, whereby the plaintiff was led to institute the garnishment proceedings, can have the effect of estopping the garnishee from denying such indebtedness in his answer. In Indiana a case of this description occurred, where the garnishee answered, denying all indebtedness, at any time, to the defend- ant. To this answer the plaintiff replied, in estoppel, that, before the institution of the garnishment proceedings, the garnishee admitted and represented to the plaintiff that he had made a cer- tain purchase of property of a third person, which really belonged to the defendant ; that a portion of the purchase-money remained unpaid; and that if the plaintiff would summon him as garnishee, he would pay that unpaid portion to the plaintiff; whereby the plaintiff was induced to institute the garnishment proceedings. To this reply the garnishee demurred ; and in the Supreme Court it was held, that the facts therein set forth did not estop the garnishee from denying indebtedness to the defendant.^ § 630. It is incumbent upon a garnishee, for his own protec- tion, to state in his answer every fact within his knowledge,- which had destroyed the relation of debtor and creditor between him and the defendant, or which would show that he ought not to be charged. For, a stranger to the garnishment proceeding is not, by the judgment against the garnishee, precluded from prov- ing that there were facts within the knowledge of the garnishee, which he did not disclose, and .wliich, if disclosed, would have discharged him, or that there was collusion between him and the plaintiff or defendant in the attachment suit.2 A fortiori is this 1 Lewis V. Trcnatt, 21 Indiana, 98. ^ Andrews v. Herring, 5 Mass. 210; Lamkin v. Phillips, 9 Porter, 98. [558] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 630 SO if he deny a fact wLich, if disclosed, would have discharged him.^ The class of cases to which this rule has been most frequently applied is that where the garnishee, knowing that his indebted- ness to the defendant had, before the garnishment, been assigned to a third party, yet confesses an indebtedness to the defendant, and is charged in respect thereof, and afterwards, when sued by the assignee, finds that the judgment against him as garnishee is no protection. Numerous cases of this description are reported, to which more special reference is subsequently made.^ But the rule extends to other matters which were known to the garnishee, and were not disclosed by him. Thus, where A. was garnished in a suit against B., and failed in his answer to disclose the fact, — which was known to him, — that, before the garnishment, B. had applied to the District Court of the United States to be declared a bankrupt, and soon after was so declared ; and judgment was accordingly rendered against A. for the debt he confessed to be owing to B. ; and afterwards he was sued by the assignee in bankruptcy upon the debt, and set up as a defence the judgment rendered against him as garnishee : it was held, that, having in his answer concealed, or omitted to give notice of, a fact which he was bound to disclose, and which would have prevented a judgment against him, the defence was unavailable.^ So, where, by law, wages due to a person are exempt from attachment, and A. gave to B. a due-bill for an amount due him for wages, and, upon being summoned as garnishee of B., answered, admitting the giving of the due-bill, but said nothing as to the consideration for which it was given, and was charged as garnishee ; it was held, in an action against him by B. on the due-bill, that the judgment against him was no defence.* So, where A. was sued by B., in Massachusetts, on a demand, and afterwards, in Connecticut, he was summoned as garnishee of B., and failed to make known the fact of the pre- vious suit in Massachusetts, and was charged ; it was held, in the latter State, that the payment by him of the Connecticut judgment was no defence against a recovery by B.^ So, where 1 Wilkinson v. Hall, Gray, 568. * Lock v. Johnson, 36 IMaine, 464. 2 Post, § 717. ^ Whipple v. Robbins, 97 Mass. 107. 3 Nugent V. Opdyke, 9 Robinson (La.), 453. [559] § 630 a ANSWER OF THE GAEFISHEE. [CHAP. XXXIII. the maker of a note to B. knew that the note when given be- longed in fact to C, and when he was summoned as garnishee of B., he failed to make known that fact ; the judgment against him as garnishee was held to be no defence against an action by C. on the note.^ So, where a stakeholder of a bet was summoned as garnishee of A., and suffered judgment to go against him as such, on account of money deposited with him by A., though he had been notified by A. that the bet was, in fact, made with the money and for the use of B., and failed to make that fact known ; it was held, in an action against him by B. for the money, that the judgment in the garnishment proceeding was no defence.^ § 630 a. It often happens that the same individual is garnished in several suits against the same defendant ; and in reference to such a state of fact the importance of care in the framing of the garnishee's answer in each case after the first is strikingly enforced. If the garnishments occurred at different times, the garnishee has no occasion, in answering the first, to refer to the subsequent ones ; but in every subsequent case he should set forth, and bring clearly to the notice of the court, all previous garnishments, so as *o secure himself against any more judgments than the debt owing by him, or the effects in his hands, will justify. And where two or more garnishments are simultaneously made, the fact of their having been so made should be stated by the garnishee, so as to enable the court to settle the several rights of the attachers, as well as protect him. If the garnishee fail in thus presenting the facts, and, in consequence thereof, more judgments are rendered against him than the debt owing or the effects held by him authorized, he is wholly remediless. He brings upon himself a double liability by his own negligence, and the law will not protect a negligent garnishee, any more than it will justify carelessness in any other party ; especially where such negligence may result to the injury of a bo7id fide creditor.^^ In every case of this description the second garnishment must remain unacted on until the first has been disposed of. The garnishee cannot be discharged in the second case, because of his having been summoned in the first ; for the plaintiff in the first 1 ritts V. Mower, 18 Maine, 361. 2 Hardy ;;. Hunt, 11 California, 343. See Kimball V. Macomber, 50 Michigan, 362. * Houston V. Wolcott, 7 Iowa, 173. [560] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 633 may recover no judgment, or one for less than he claimed, and so leave effects in the garnishee's hands sufficient to meet the second. The proper course is to continue the second case until the first is finally determined. ^ § 631. But though the garnishee is under obligation, for his own protection and that of third parties, to state all facts within his knowledge which have destroyed the relation of debtor and creditor between liim and the defendant, he cannot be allowed in his answer to make allegations, which have the effect of changing the terms of a written contract, under which he ap- pears to be a debtor of the defendant. Therefore, where, by a written contract, the garnishee was bound to pay the defendant a certain sum of money, it was held, that he could not allege in his answer that that sum was to be paid in a certain description of bank paper.^ « § 632. If the garnishee was not indebted to, or did not hold property of, the defendant, he should simply and explicitly so declare. If he be in doubt Mhether under an existing state of facts he is chargeable, he should state all the essential facts with minuteness and precision, and leave it for the court to decide the question of his liability. And it will be advisable for him to take the same course, whenever his liability grows out of transactions in which are involved a multiplicity of facts. If he is indebted to the defendant on account of a single transaction, of simple contract, — which is the most usual case, — he should, in like manner, state the facts out of which his indebtedness arose. § 633. In all cases he should carefully avoid any evasion or equivocation, for an evasive answer will be treated as a nullity ; ^ or if not so, it will be construed most strongly against him ; * and any equivocation would subject the whole answer to suspicion. He should, with equal care, avoid admitting himself, in Ifis answer, liable as garnishee when in fact he is not, for when he has once made such an admission, it is said he is estopped from 1 Cutter V. Perkins, 47 Maine, 557; ^ Scales r. Swan, 9 Porter, 1G3 ; Parker Prentiss v. Danalier, 20 Wisconsin, 311 ; v. Page, .38 California, 522. Danaher v. Prentiss, 22 Ibid. 311 ; Brickey * Grain v. Gould, 46 Illinois, 293 ; Keel V. Davis, 9 Bradwc41, 362. v. Ogden, 5 Monroe, 362. 2 Field V. Watkins, 5 Arkansas, 672. 36 [561] S 634 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. afterward denying it.^ Thus, where in a suit against Daniel H., a garnishee answered, admitting having executed certain notes to him, and judgment was rendered against him in respect thereof ; and he moved to set aside the judgment on the ground that he made a mistake in his answer, in admitting having given notes to Daniel H. when in fact he had given them to Samuel H. ; his motion was denied, — the court saying : " A garnishee stands upon the same footing, and must pay the same penalty for his neghgence, inadvertence, or forgetfuhiess as any other defendant whatsoever. " ^ § 633 a. If the Law authorize a denial by the plaintiff of the answer, that is not the proper course for him to take if the gar- nishee refuse to answer, or answer evasively ; for it would pro- duce no issue to be tried between them: he should except to the sufficiency of the answer, and if the court sustain the exception, and order the garnishee to answer more fully, and he refuse to do so, he is as much in default as if he had not answered at all, and judgment may be rendered against him accordingly.^ § 634. The important points to be attained in framing a gar- nishee's answer, are fulness and explicitness. The absence from an answer of either of these qualities might in many cases sub- ject the garnishee to a judgment against him. He should answer every pertinent interrogatory, so far as he is able, if not in his power to do so fully; otherwise, it is said in Massachusetts, he will be charged, even though he should declare his belief that he has in his hands nothing of the defendant's.^ And there sliould be nothing doubtful in his expressions ; for, on the ground that he might have used expressions free from doubt, those of a doubt- ful kind will be construed against him.^ The full extent and application of this last rule will be considered under the fifth head o^ this chapter. 1 Woodbridge v. Wintlirop, 1 Koot, * Shaw v. Bunker, 2 Metcalf, 370. 557. See Knisely v. Evans, 34 Oliio ^ Sebor v. Armstrong, 4 Mass. 206; State, 158. Cleveland v. Clap, 5 Ibid. 201 ; Kelly v. 2 Fretwell t). Laffoon, 77 Missouri, 20. Bowman, 12 Pick. 383; Sampson v. 3 Richardson v. White, 19 Arkansas, Hyde, 16 New llamp. 492; Brainard v. 241. Shannon, GO Maine, 342. [562] CHAP. XXXTII.] ANSWER OF THE GARNISHEE. § 636 § 635. When the answer of a garnishee shall have come up to the foregoing rules, and is full and intelligible in reply to the interrogatories exhibited against him, the court will protect him from further interrogatories, in relation to the matters embraced in his answer. Thus, where the garnishee stated in his answer that a certain sum was in his hands which had been earned by the defendant, and for which the defendant had drawn an order on him payable to a third person ; and the plaintiff presented an additional interrogatory, requiring the garnishee to " state dis- tincthj how much money was in his hands, at tlie time of the service of the writ on him, which had been earned by the defend- ant ; " the court held, that the garnishee could not be charged in consequence of a refusal to answer this interrogatory, because it merely demanded of him to state distinctly what he had fully stated before.! ^i^,-! ^here the garnishee fully answered as to all matters between him and the defendant at the time of and prior to the garnishment ; but refused to answer interrogatories in regard to transactions between them after the garnishment, and which he declared had no connection with any business or liabilities between him and the defendant ; the court held him not chargeable by reason of his refusal to answer those interroga- tories.2 § 636. Whether a garnishee may in any case be charged be- cause he refuses to answer pertinent interrogatories, must dei)end upon positive law or established practice. In Vermont, it is held to be discretionary with the court to charge him or not, and that the exercise of that discretion will not be revised by a supe- rior tribunal.^ Ordinarily the course to be pursued under such circumstances is prescribed by statute. In some States, the gar- nishee may, by attachment of his body, be compelled to answer ; or judgment by default may be taken against him, to be made final in the same manner as in the case of a defendant, — in which case the plaintiff must prove the garnishee's liability;* or the refusal to answer is declared to be an admission that he has effects of the defendant, or is indebted to him, to an amount 1 Carrique v. Sidebottom, 3 IMetcalf, ^ Worthington v. Jones, 23 Vermont, 297. See Ullmeyer v. Ehrmann, 24 540 ; Knapp v. Levanvvay, 27 Ibid. 298. Louisiana Annual, o2. * Brotlierton v. Anderson, 6 Missouri, 2 Humphrey r. Warren, 4-5 Maine, 216. 388. See Wood v. Wall, 24 Wisconsin, 647. [563] § 637 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. sufficient to satisfy the plaintiffs demand ; when judgment will go against him as if he had made the admission in terms. In this case, if there are several interrogatories, a refusal to answer one, of a material character, will not be excused because the an- swer to the others implies a response to it. The garnishee must answer all, in a plain and distinct manner, or he will be made liable.i In all cases of this description, the suggestion of the Supreme Court of Wisconsin might well be observed, — that the court, before rendering judgment against a garnishee for failing to an- swer a particular question, should inform him that the question is a proper and pertinent one for him to answer, and give him thereafter an opportunity to answer it.^ § 636 a. Though the garnishee deny that he owes the defend- ant, or holds his money or property, yet if he refuses to answer questions respecting his business relations with the defendant, so as to enable the court to ascertain his true position, he will be charged, if the law under which he was summoned authorizes a garnishee to be charged where he refuses to answer. He puts his conclusion of law as to his liability in the place of that of the court, and denies to the court the means of testing the correct- ness of that conclusion.^ § 636 h. If the law require a garnishee to appear in person in court and answer such interrogatories as the plaintiif maj^ pro- pound to him, in addition to those authorized by statute ; and he file an answer to the latter, and fail to appear ; his answer may be stricken from the files, and judgment by default may be taken against him.* § 637. It is not necessary to the fulness and explicitness of a garnishee's answer, that it should be conformed to the technical rules of pleading. In this respect it partakes of the nature of an answer in chancery. Thus, where a garnishee answered that he owned a note of the defendant for an amount greater than his indebtedness to the defendant, and on the trial offered in evidence 1 De Blanc v. Webb, 5 Louisiana, 82 ; '^ Mansfield v. N. E. Express Co., 58 Vason r. Clarke, 4 Louisiana Annual, 58L Maine, 35. 2 Wood V. Wall, 24 Wisconsin, G47. * Penn v. Pelan, 52 Iowa, 535. [564] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 639 an instrument in all respects conformable to that described in the answer, save that it was a bond instead of a note ; it was held, that the answer was substantially sustained, and that it was of no consequence that the garnishee had failed, in describing the instrument, to employ the proper legal terms.^ § 638. While it will be required of a garnishee to answer fully and intelligibly all pertinent interrogatories put to him, regard will still be had to the circumstances in which he is placed, and which may prevent as full and positive an answer as would be desirable. If the answer is deficient in these respects, but it appears that the garnishee has responded as fully and positively as he could, he will not be charged for failing to do more. Thus, where the administrator of a person, who, in his lifetime, had been garnished, answered " to the best of his knowledge," it Avas held, that, though the answer might not be sufficient, if it had come from one having certain knowledge of the business, yet as it could not be expected that the administrator should be pos- sessed of the same degree of knowledge as the intestate, and the answer appeared to be the best that could be obtained, it was sufficient.^ So, where a garnishee disclosed that the defendant had agreed to build a house for him, and he had agreed to pay the defendant certain sums at certain stages of the work ; that he had generally paid before the instalments became due ; but that he had no means of ascertaining whether, at the time he was summoned, the payments were in advance of the work or not ; it was held, that he should not be charged ; the answer appearing to be as definite as it could be made.^ § 639. A garnishee, in framing his answer, need not confine himself to matters within his own knowledge, but may introduce into it any extrinsic facts which he supposes important to a cor- rect determination of the question of his liability, or in reference to the interests of others. Whether such facts will affect the issue will, of course, be decided by the court. It is principally in regard to the rights of third persons, not parties to the pro- ceedings, that the introduction of such facts is desirable. They would often be without protection, unless the garnishee were at 1 Asliby V. "Watson, 9 Missouri, 235. ^ Harris v. Aiken, 3 Pick. 1. 2 Ormsby v. Anson, 21 Maine, 23. [565] § 639 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. liberty thus to bring their rights under the cognizance of the court. Tlie extrinsic facts thus introduced may be of almost any description. Tliey may consist of writings, or verbal communi- cations, or affidavits proceeding from third persons, and having reference to the question of his liability as garnishee. Thus, a garnishee answered that he had executed a bond to the defend- ant, conditioned for the payment to him of $1,000, in one year after the death of the defendant's mother, and that lie should pay the annual interest on that sum to the mother during her life ; that he was informed, at the time of executing the bond, and had reason to believe, that it was originally taken by the defendant for the use of himself, his brother, two sisters, and a minor child of a deceased brother, the heirs at law of the defend- ant's mother ; that the mother had died ; that the defendant, after her death, drew an order on the garnishee for $520, stating that sum to be in full for his part of the bond ; and that in the letter to the drawee, covering the order, the defendant said that the other part of the bond belonged to the other heirs of his mother ; and the order and letter Avere annexed to and made part of the answer. It was objected that these documents could not be received as part of the answer ; but the objection was over- ruled, on the ground that if it were not competent for the gar- nishee to disclose anything but what is within his own personal knowledge, the interests and rights of cestuis que trust would be in great jeopardy ; for their property would go to pay the debts of the trustee, and he might be wholly unable to respond.^ So, where a garnishee offered as a part of his answer, certain affidavits of third persons, the court held them admissible ; and laid down the broad proposition, that a garnishee might refer to letters, statements, assignments, or other histruments and documents, and adopting them, make them part of his answer.^ In all such cases, however, it is considered, in Massachusetts, where the answer was formerly conclusive, and could not be con- troverted, that the extrinsic facts thus brought into the answer have no force in themselves, but are to be regarded only so far as the garnishee may declare his belief in their truth. They are received on the authority of his oath. If he does not believe 1 Willard v. Sturtevant, 7 Pick. 194. " Kelly i^. Bowman, 12 Pick. 380 ; GiJ- See Sexton y. Amos, 39 Michigan, G95. (lings v. Coleman, 12 New Ilamp. 153; Bell V. Jones, 17 Ibid. 307. [56G] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 639 a them to be true, he ought not to make them part of his answer. If he makes them a part of his answer, and at the same time states his disbelief of their truth, the answer would so far be nugatory. Hence it is not alone the facts themselves, but the garnishee's adoption of them, and his belief in their truth that give them weight in the question of his liabihty.^ Therefore, an affidavit made by a person interested in the suit will be received, when made a part of the garnishee's answer, because it is re- ceived on the garnishee's oath, and not as the testimony of a witness.2 Since the adoption in the Revised Statutes of Massa- chusetts, of 1836, of a provision allowing the plaintiff to allege and prove any facts not stated or denied by the garnishee in his answer, that may be material in deciding the question of the garnishee's liability, it is held there, that where no such facts are alleged or proved, and the garnishee has answered fairly and made a full disclosure, the facts which he states to be true, from his information and belief, are to be considered as true, as well as those stated on his own knowledge.-^ But where, on the examination of a garnishee, a letter was shown him from a third person not a party to the suit, for the purpose of establishing that the property in the garnishee's hands was not the defendant's, but another's, and the garnishee authen- ticated the signature to the letter, but said nothing of its con- tents ; the court refused to receive the letter as a part of his answer, because, though its genuineness was established, its contents might be untrue, and could not be presumed to be true.* § 639 a. It is no valid objection to an interrogatory to a gar- nishee, that it requires him to make a statement of his accounts with the defendant. Sometimes that miglit be the only mode of ascertaining the true state of the accounts of the parties ; and litigants cannot be deprived of their rights, because it may occa- sion the garnishee some inconvenience.^ 1 Hawes v. Langton, 8 Pick. 67 ; Kelly ^ Fay r. Sears, 111 :\rass. 154. V. Bowman, 12 Ibid. 383. * Stackpole v. Newman, 4 Mass. 85. 2 Kelly V. Bowman, 12 Pick. 383. But ^ Request v. Steamer B. E. Clark, 13 such affidavit will not be received or no- Louisiana Annual, 210. ticedwhen notmadepart of tlie garnishee's answer. Minchiii v. ^loore, 11 Mass. 90. [567] § 641 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. § 640. It has been attempted to screen garnishees from answer- ing interrogatories, a response to which might show them to have been parties to fraudulent sales or dispositions of personal prop- erty. In Massachusetts, the courts have sustained such questions, and required disclosures, even though the effect might be to sub- ject the garnishee to liability as such out of his own property ; ^ but in Louisiana a garnishee cannot be compelled to answer ques- tions intended to elicit answers showing that he held under simu- lated or fraudulent titles property which really belonged to the defendant.2 § 641. The extent to which privileged communications to a garnishee are protected from the scrutiny of a plaintiff's inter- rogatories, has been the subject of decision in Louisiana. The Code of that State provides that " no attorney or counsellor-at- law shall give evidence of anything that has been confided to him by his client, without the consent of such client." This is, in effect, embodying in a statute the principle of the common law. In that State, an attorney-at-law was summoned as garnishee of his client, and various interrogatories were propounded to him, intended to elicit the date of his retainer, wdio was his client, the sums of money he had received, the persons from whom received, the payments made, and the persons to whom, and the date of the correspondence. Other interrogatories called for letters from the defendant, and a copy of the defendant's letter to him acknowl- edging the receipt of certain notes, or the garnishee's letter in reply thereto. The garnishee refused to answer certain of the interrogatories, on the ground that he was called uj)on to disclose privileged communications received from his clients. In reference to this the court said: " It is evident that the attorney cannot be permitted to disclose anything that has been confided to him by his client. But to bring the matter within the privilege which exempts the communication from disclosure, it must appear who is the client, in order to know whose communications are to be excluded. Again, it must be something confided by the client to 1 Ante, § 458; Devoll v. Brownell, 5 2 Kearney i'. Nixon, 10 Louisiana An- Pick. 448; Ncally v. Ambrose, 21 Ibid, nnal, IG; Battles v. Sirunions, 21 Ibid. 185; Lamb v. Stone. 11 Ibid. 527; Ober- 416. teuffer v. Ilarwood, 2 McCrary, 415; 6 federal Reporter, 828. [568] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 642 the attorney. Now, the object is simply to ascertain who is the client who intrusted the notes to the garnishee for collection ; when that relationship commenced and ended ; and what money has been received, and what paid over, and to whom paid. None of these matters appear to us to be privileged communications ; and if an attorney-at-law were not permitted to disclose who was his client, and what sums of money he had received or disbursed 01^1 his account, it would give rise to great frauds. If the attorney may be interrogated as to who is his client, he may also be asked through whose agency, or in what manner, and at what time he was retained." This ruling of the court covered all the interrog- atories except three ; and those the court required him to answer, unless he should to each one answer on oath that he could not answer the same without disclosing matters confided to him by his client, or advice given by him to his client, concerning the business about which he was retained.^ In another case an attorney was garnished, and answered that he had received a sum of money on account of the defendant, whose attorney he was, but added that he had almost immedi- ately paid it over according to his client's instructions. "When questioned as to when and to wliom he paid it, he refused to answer ; contending that he could not answer without disclosing matters and instructions confided to him in professional confi- dence. But the court held, that the disclosure could not be ob- jected to on that ground, as the time of payment was within his knowledge independently of any communication he might have received from his client ; and enforced its opinion with some in- structive remarks about " a barefaced resort to such shameful evasions, under the pretence of a scrupulous regard for profes- sional obligations." 2 § G42. II. What the Garnishee may not he required to state in his Ansiver. A very wide latitude of interrogatory is usually allowed, in endeavoring to ascertain whether the garnishee can be made liable. Almost every variety of question bearing upon this point may be propounded, and an answer required, and, where authorized by statute, or by the course of practice, compelled by 1 Shauffhnessy v. Fogg, 15 Louisiana ^ Comstock i-. Pale, 18 Louisiana, 479. Annual, 330. See White v. Bird, 20 Ibid. . 188. [.569] § 644 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. attachment of the garnishee's body. Still, there must be a limit to this power of inquisition ; and the garnishee has a right to have the correctness of a proposed inquiry adjudicated by the court, and is not bound to submit to any and every conceivable investigation, without objection ; or, if he objects, become liable to pay the entire debt in the main action, if his objection should prove unfounded.^ And it seems to be conceded that the limit of investigation is to be fixed in the discretion of the court in which the garnisheojis examined ; the action of which will not be revised by a superior tribunal.^ Therefore, where a garnishee after ansv/ering, was required to answer, and did answer, three sets of interrogatories in detail, and the plaintiff filed a fourth set, the garnishee prayed the opinion of the court whether he was bound to answer them, and the court decided he was not.^ § 643. All interrogatories must be confined to such matters, as the law by which they are authorized contemplates as the ground of a garnishee's liability. Thus, where a statute authorized the plaintiff to exhibit interrogatories touching the estate and effects of the defendant in possession or charge of the garnishee, or debts due and owing from him to the defendant; and one who held the office of justice of the peace was garnished, and he was asked how many judgments were entered on his docket in favor of the at- tachment defendant, and when, against whom, and for what amount they were respectively entered ; it was held, that the question was illegal, and not such as the garnishee was bound to answer.* So, where interrogatories were propounded to a gar- nishee relating to personal property mortgaged to him by the defendant, to indemnify him against liabilities he had assumed for the defendant ; it was held, that, as a mortgagee of goods not in possession of them could not be charged as garnishee in respect of the mortgage, the questions were impertinent, and should not be answered.^ § 644. Every court will, of course, protect the garnishee from impertinent and vexatious questions, especially after he has fully 1 Sawyer i-. Webb, 5 Iowa, 315. geant, 342. See Lyman v. Parker, 33 2 Wortliingtoii v. Jones, 23 Vermont, Maine, 31 ; Kuqucst v. Steamer B. E. 546; Kiiapp v. Levaiiway, 27 Ibid. 298. Clark, 13 Louisiana Annual, 210; Rhine 3 Warner v. Perkins, 8 Gushing, 518. v. D. II. & W. R. Co., 10 Philadelphia, See (iiitp,, § 035. 330. * Corbyn i;. BoUman, 4 WaUs & Ser- ^ Callender v. Furbish, 4G Maine, 226. [570] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 647 answered. Hence, in ^Massachusetts, where a garnishee had so answered, and the plaintiff put further interrogatories, requiving him to state whether he had not, in conversation with third per- sons, said differently from the statements of his answer, the court dechired that the plaintiff had no right to ask questions fur the purpose of discrediting the garnishee's disclosures ; that the plaintiff was bound to take the garnishee's statements under oath as truth, and could neither impeach his character nor contradict his testimony ; that therefore he was not entitled to the privilege of cross-examination ; and. that what the garnishee might have told other persons, or said on former occasions, is immaterial, and not a proper subject of inquiry. ^ § 645. It may be regarded as a sound rule, that a garnishee shall not be required to state in his answer anything that will deprive him of a defence against his debt to the defendant, which, if he were sued by the defendant, he might set up in bar of the action. Thus, where a garnishee answered, that, more than twenty years before he was summoned, he had given a bond to the defendant, payable on demand, the point was made whether he could be asked if he had paid the bond ; and the court would not suffer the question to be put, because that would be to make him give up a defence he would have if sued by the defendant ; when he might plead paj'ment and rely on the lapse of time to support the plea.^ § 646. It seems to be sustained by authority, and consonant with sound principles, that a garnishee shall not be required to state anything in his answer which will show him to have been guilty of a violation of law. Thus where a garnishee was asked whether he had not received usurious interest of the defendant, it was held, that as he could not answer affirmatively without criminating himself, he should not be required to respond to the interrogatory .2 § 647. It has also been held in Massachusetts, and in Maine, that a garnishee shall not be compelled to state anything which 1 Grossman v. Grossman, 21 Pick. 21 ; 2 Qqq y, Warwick, 2 Haywood (N. C.), Warner v. Perkins, 8 Cushinrr, 518; Nut- 354. ter I'. F. & L. R. Co., 131 Mass. 231. 3 Boardman v. Roe, 13 ]\rass. 104 [571] § 649 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. might tend to impair or impeach his title to real estate, derived from the defendant.^ In New Hampshire, however, the contrary doctrine was held, in a case where the garnishee stated in his an- swer a conveyance of real estate to him by the defendant, and the court required an answer to supplementary interrogatories, intended to show the conveyance to have been made without consideration.^ § 648. Where, however, the garnishee disclosed a conveyance of real estate by the defendant to him, it was decided that the following question might be put to him : " Is there any real estate in your possession, belonging to the defendants, which you hold in trust for them, so that you are accountable for the rents and profits thereof? or are you under any obligation to account for the proceeds of the same or of any part thereof, if sold by you ? " 2 And in a case where it was alleged that real estate conveyed by the defendant to the garnishee was held in trust, to be disposed of for the benefit of the latter, the court decided that the garnishee might be required to answer the following ques- tion : " At the time you received a deed or deeds of land from the defendant, or at any other time since, was there any agree- ment in writing or by parol, that you should dispose of the same and account to him in any manner for the proceeds?" — and that, in the event of the question being answered in the affirma- tive, there might be a further examination as to the disposition of the proceeds.* § 649. We have seen^ that a garnishee may make the state- ments of others a part of his answer, and that, when so made, they will be received and considered. It is, however, entirely at his option to incorporate such statements in his answer, and the court will not compel him to do so against his will. There- fore where the plaintiff delivered to the garnishee an affidavit of the defendant touching the effects in the garnishee's hands and tending to subject them to the attachment, and requested the garnishee to make the affidavit a part of his answer, which was 1 Boanlman ?•. Hoe, IH Mass. 104 ; Rus- » Russell v. Lewis, 15 Mass. 127. sell V. Lewis, 15 Ibid. 127; Moor u Towle, * Hazen ?'. Emerson, 9 Pick. 144. 38 Maine, 133. 6 j^,tte, § G3'J. 2 Bell V. Kendrick, 8 New Ilamp. 520. [572] CHAP. XXXIII.] ANSWER OF THE GAENISHEE. § 650 refused ; the court decided that it had no power to compel a compliance Avith the plaintiff's demand. ^ § 650. III. Of Amending the Answer of a Garnishee. The propriety of allowing a garnishee to amend his answer, or to put in a new answer, has in several instances been the subject of dis- cussion, and it has usually been sustained. There is, indeed, no sufficient reason why an amendment in such case should'not be permitted. There may be cases where the garnishee discovers new facts, or finds that he has made an imperfect or erroneous statement ; and there seems to be nothing in principle to prevent him, before final judgment, from making a more complete, per- fect, and correct answer, being responsible as in all other cases for its truth. The only objection which could arise is, that a garnishee might be induced, by new suggestions and new views, to put in an answer varying from his first answer, and not true in itself. But when it is considered that, by any mode of ad- ministering the law, the garnishee may take his own time and his own counsel, and make such answer as he will, there seems to be no more danger of falsification in the one case than in the other." In Louisiana, while the discretionary authority of the court to permit amendments, where an answer is really responsive to the question, is admitted, it is yet considered that an answer which is manifestly evasive ought not to be amended, as such a practice might lead to frivolous delays.^ And in that State it was held, that where a garnishee has answered acknowledging his indebted- ness to the defendant, he cannot afterwards file another answer, the effect of which is to release him from liability.* And so in Tennessee.^ In Wisconsin the garnishee is, under some circumstances, ex- amined before a commissioner, when he may be subjected to unlimited interrogation. In a case there in which the examin- 1 Hawes v. Langton, 8 Pick. 67 ; Kelly 42 Maine, 132; Newell v. Blair, 7 Mich- V. Bowman, 12 Ibid. 383. igan, 103. 2 Hovey v. Crane, 12 Pick. 167; Car- ^ Uavis v. Oakford, 11 Louisiana An- tique V. Sidebottom, 3 Metcalf, 297 ; Bu- nual, 379; Rose v. Whaler, 14 Ibid. 374; ford V. Welborn, 6 Alabama, 818 ; Neil- Tapp v. Green, 22 Ibid. 42. son V. Scott, 1 Rice's Digest of South * Thomas v. Fuller, 2G Louisiana An- Carolina Reports, 80 ; Murrell v. John- nual, 625. son, 3 Hill (S. C), 12 ; Smith v. Brown, ^ pickler v. Rainey, 4 Heiskell, 335. 6 California, 118; Stedman v. Vickery, [573] § 652 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. ation covered more than three hundred folios, questions and answers, the pLiintiff, not satisfied with the answer, — that is, the whole examination, took issue thereon. On the trial of that issue the garnishee was permitted to explain, contradict, and qualify admissions and statements made by him before the com- missioner ; and the appellate court sustained the action of the court below in this respect, and held that the garnishee had an undoubted right to correct, on the trial, any mistakes he had made in his examination before the commissioner.^ § 651. IV. The Effect to he given to the Garnishee's Ansiver. This depends in a great measure on the statutory provisions of each State. In some States, the answer is conclusive ; in others, it may be controverted. In either case, however, as to all state- ments of fact, given on the garnishee's personal knowledge, as well as to all declarations of his belief of facts derived from in- formation, the answer is taken to be true ; ^ in the former class of States, conclusively so ; in the latter, subject to be disproved by competent evidence. § 652. In Massachusetts, the garnishee's liability formerly turned entirely upon his answer, and evidence collateral thereto was not admitted ; ^ and so stringent was this rule, that an agreed statement of facts, signed by the garnishee, but not sworn to, and submitted by the plaintiff, defendant, and garnishee, for the decision of the Court, as to the liability of the latter, was rejected by the court.* In the Revised Statutes of 183G, ch. 109, § 15, there is a slight modification of the strict rule which had prevailed, in that, while it declares the answers and statements of the garnishee shall be considered as true, in deciding how far he is chargeable, it allows either party to allege and prove any other factsy not stated nor denied hy the garnishee, that may be material in deciding that question.^ In Michigan and Tennessee, the garnishee's liability is determined solely by his answer.^ 1 Klauber v. Wright, 52 Wisconsin, ^ Gouch v. Tolman, 10 Gushing, 104. 303. 6 Maynards v. Corn well, ?> Michigan, 2 Grossman r. Grossman, 21 Pick. 21 ; 309; Newell v. Blair, 7 Ibid. 103; Meeker r. Sanders, G Iowa, 61. Thomas v. Sprngue, 12 Ibid. 120; Sex- 8 Gomstock V. Farnum, 2 Mass. OG ; ton v. Amos, 39 Ibid. 605; Cheatham Stackpole v. Newman, 4 Ibid. 85; Ilawes v. Trotter. Peck. 108; Childress v. Dick- ie. Langton, 8 Pick. 67. ins, 8 Yerger, 113. * Barker v. Taber, 4 Mass. 81. [574] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 654 § 653. Ill most of the other States the answer is taken to be true, but is subject to be controverted and disproved. The effect given to it in this respect is, however, confined to its statements of facts. If the garnishee sets up rights or draws conclusions, arising out of or resulting from the facts stated, such rights and conclusions are necessarily subject to revision by the court.^ In Alabama, the answer is taken to be strictly true, and if a deed is appended to it, it is to be considered genuine, unless the answer be traversed.^ In Missouri,^ Illinois,^ Arkansas,^ Louisi- ana,'^ and Mississippi,^ the same effect is given to the answer until it is disproved. § 653 a. Where the answer is considered conclusive unless controverted, it is error to allow evidence to be given to contra- dict it, until issue has been regularly taken upon it.^ § 654. In ascertaining the effect to be given to an answer, when assailed by opposing testimony, but few cases can be found. In Illinois, the question cam« up, and it was held, that the an- swer is not entitled to have the same effect as that of a defend- ant to a bill in chancery, requiring the testimony of two witnesses, or what may be equivalent, to overthrow it, but is to be consid- ered as presenting ^ jirimd facie defence, liable to be rebutted by preponderating testimony.^ In Maine the statute says that " the answers and statements sworn to by a trustee shall be deemed true, in deciding how far he is chargeable, until the contrary is proved ; " and there t'he court held, that the question of the gar- nishee's liability was to be determined by the preponderance of evidence ; and in deciding it the answer of the garnishee was to be weighed and its effect determined by the general principles on which conclusions are to be drawn from any other lawful 1 Lamb v. Franklin Man. Co., 18 ^ Mason v. IMcCampbell, 2 Arkansas, Maine, 187. 506; Britt v. Bratlsliaw, 18 Ibid. 5oO. 2 Robinson v. Rapelye, 2 Stewart, 86. « Oakey v. M. & A. Railroad Co., 13 3 Davis V. Knapp, 8 Missouri, 057; Louisiana, 570; Blanchard r. Vargas, 18 McEvoy V. Lane, 9 Ibid. 48; Stevens v. Ibid. 486; McDowell r. Crook, 10 Louisi- Gwatbmey, Ibid. 63G ; Black i'. Paul, 10 ana Annual, 31; Ilelme v. Pollard, 14 Ibid. 103 ; Holton v. Soutli Pacific R. R. Ibid. 306; Barnes v. Wayland, Ibid. 791. Co., 50 Ibid. 151. ' Williams r. Jones, 42 .Mississippi, 270. * Kergin v. Dawson, 6 Illinois (1 Gil- ** Williams v. Jones, 42 Mississippi, 270. man). 86; Rankin v. Simonds, 27 Ibid. ^ Kergin v. Dawson, 6 Illinois ( 1 Gil- 352 ; Rippen v. Schoen, 92 Ibid. 229. man), 86. [575] § 654 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. evidence.^ In Pennsylvania, where, under the statute of 1789, the garnishee was held to be chargeable until he discharged him- self, at least by his own oath, it was considered that the answer is prima facie sufficient, but that its truth might be inquired into by the jury ; and that the plaintiff makes out his case merely by destroying the effect of the answer, unless the garnishee main- tains the issue bj'- other satisfactory evidence ; and this the plaintiff may do by disproving the matter alleged in the answer, or by showing the garnishee to be utterly unworthy of credi*t. • On this principle, evidence which falsifies any fact asserted in the answer, goes to the credibility of the garnishee, and is there- fore competent.^ In Mississippi, it is ruled that where the truth of the answer is denied, it cannot be read to the jury impanelled to try the issue.^ If, liowever, upon such a trial the plaintiff reads the answer to the jurj^ it is held, in Pennsylvania, that it must be taken as jjrimd facie evidence, not requiring of the garnishee other proof to establish it ; ^ and in Alabama, that it has the effect only of an admission of the garnishee, and is gov- erned by the same rules as any other admission.^ In Missouri, the answer cuts no greater figure in the trial than the answer of a defendant in an ordinary suit, and it is not necessary for the plaintiff, in order to a recovery, to disprove the facts stated in the answer.^ In Maryland, the answer is regarded not as part of the pleading, but as evidence, and if any part of it be read, the whole must be ; as well that which discharges as that which charges the garnisliee ; and the whole is to be received as prinid facie evidence of the facts stated in it ; open, however, to be rebutted." In Illinois, the garnishee is entitled to have his answer before the jury, who may give it sucii weight as they may believe it entitled to, in connection with all the circumstances of the case.^ But in South Carolina^ and Alabama ^^ the answer is not admissible evidence in the garnishee's favor. And so in 1 Kellcy V. Weymouth, G8 Maine, 107. " Smith v. Ileidecker, 39 Missouri, 157. - Ailhim V. Yard, 1 Rawle, 108 ; EUi- ''' Devrics v. Buchanan, 10 Maryland, son )•. Tuttle, 26 Texas, 283. Sed contra, 210. Barnes v. Wayland, 14 Louisiana Annual, ^ Schwab v. Gingerick, LS Illinois, 697. 791. ^ Dawkins v. Gault, 5 Richardson, 151. » Lasley v. Sisloff, 7 Howard (Mi.), ^o Myatt r. Lockhart, 9 Alabama, 91; 157. Price v. Mazange, 31 Ibid. 701 ; Sevier v. * Erskine v. Sangston, 7 Watts, 150. Throckmorton, 33 Ibid. 512. ^ Myatt ?•. Lockhart, Alabama, 91. [57G] CHAP. XXXm.] ANSWER OF THE GARNISHEE. § 656 Wisconsin and in the United States District Court for the South- ern District of New York.i § 655. As to the evidence which may be given against the gar- nishee's answer, it is held, in Missouri, that his admissions in conversation, either before or after the answer is sworn to, are admissible to disprove the statements of the answer ;2 but, in Wisconsin, that they do not amount to an estoppel.^ And in a chancery proceeding in Kentucky, where the garnishee, who had been agent and clerk of the defendant, had, before he was gar- ipshed, frequently declared to the complainants that he had a suflBciency in his hands to pay their demand, and paid a part, and afterwards put in a partial and equivocal answer, admitting that he had a sum in his hands, collected and to be collected, but not stating how much ; he was charged for the whole amount of the complainant's demand.^ In Massachusetts, on the contrary, in the cases previously referred to,^ it was decided, that what the garnishee might have told other persons, or said, on former occa- sions, is immaterial, and the garnishee could not be questioned in regard thereto. It is quite certain, however, that declara- tions of the defendant are not admissible in evidence for the plaintiff against the garnishee ; ^ nor, when made after the gar- nishment, are they evidence in his favor ; "^ nor are admissions by an agent of the garnishee evidence against the latter.^ But what- ever evidence may be given to controvert his answer, must go to disprove the facts therein stated. It is not admissible for the plaintiff to assail the answer by impeaching the garnishee's credibility.^ § 656. V. The Construction to he given to the Garnishee's An- swer. The necessity of fulness and explicitness in the garnishee's answer, previously adverted to, is illustrated and enforced by the 1 Keep V. Sanderson, 12 Wisconsin, v. Ellis, 18 Vermont, 500. And in Mary- 352 ; Gushing v. Laird, 6 Benedict, 408. land the garnisliee cannot, to discharge 2 Stevens v. Gwathmey, 9 Missouri, himself, give in evidence the declara- 636. See Carroll r. Finley, 26 Barbour, tions and admissions of the defendant. 61 ; McKee v. Anderson, 35 Indiana, 17. Thomas v. Price, 30 Maryland, 483. 3 Warder v. Baker. 54 Wisconsin, 49. '^ Warren v. Moore, 52 Georgia, 562. * Keel V. Ogden, 5 Monroe, 362. » Baltimore & Ohio R. R. Co. v. Gal- 5 Grossman v. Grossman, 21 Pick. 21 ; lahue, 12 Grattan, 655. Warner v. Perkins, 8 Gushing, 518; ^ Barnes v. Wayland, 14 Louisiana ante, § 643. Annual, 791. Std contra, Adluni v. Yard, e Enos V. Tuttle, 3 Conn. 27 ; Cahoon 1 Rawle, 163. 37 [577] § 656 ANSWER OF THE GARNISHEE. [CHAP. XXXIH. rule which has obtained in Massachusetts, in relation to doubtful expressions contained in an answer. We will trace the rise and progress of this rule. The matter came up at an early day, in a case where the lia- bility of the garnishee turned on the point whether a draft drawn on and accepted by him, in favor of the defendant, was negoti- able. If it was, he could not, under the statute, be charged ; oth- erwise he could. In his answer he stated his acceptance of the draft, and that he thought it was payable to the defendant or order. "But," said the court, "he must be positive as to this fact. He has had time to inquire, and he does not move the court for leave to make any further declaration on this point. If he, in whose knowledge the fact ought to be, is doubtful, the court cannot make any presumption in his favor." ^ In the next case the court go a step further, and say, " If the statement in any part be doubtful, we must construe it against the trustee, who might have used expressions in which there should be no doubt." ^ Again the court say, " The answer of a trustee being his own language, must unquestionably in all cases be construed most strongly against himself. But his language is not to be distorted nor forced into any unnatural construction ; nor can inferences be drawn from any real or supposed discrepancies in his answers, against the fair and natural import of the language taken alto- gether." 3 The rules laid down in these cases were applied by the same court to a case where the question of the garnishee's liability turned on a statement in his answer with regard to the disposition made of certain provisions, the most of which, he said, had been consumed in a particular way. If they had all been so consumed, the garnishee would not be charged ; otherwise he might be. The court adjudged him liable, because he did not answer with sufficient precision, when it was in his power to have done so.* Subsequently, the rule was limited in its application to cases where the garnishee, in some part of his answer, makes statements, which, unexplained, would prima facie subject him to liability .5 The last case cited seems to be one of this character. 1 Sebor v. Armstrong, 4 Mass. 206. Sampson v. Hyde, 16 Ibid. 492; Scott v. 2 Cleveland v. Clap, 5 Mass. 201. See Kay, 18 Pick. 360; Ormsbec v. Davis, 5 Sampson v. Ilvdo, 16 New Ilamp. 402. Rhode Island, 442. 8 Kelly V. Bowman, 12 Pick. 383. See * Graves r. Walker, 21 Pick. 160. United States r. Langton, 5 Mason, 280 ; ^ Shearer i'. Handy, 22 Pick. 417. Giddings v. Coleman, 12 New Hamp. 153 ; [578] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. § 658 There, the garnishee was primd facie liable, and endeavored to avoid liability by a statement concerning the provisions in his hands. That statement being deficient in precision and fulness, the court would not receive it as a protection against the j^rimd facie liability appearing by the answer.^ § 657. In Louisiana, a statutory provision exists, declaring that a garnishee's " refusal or neglect to answer interrogatories shall be considered as a confession of his having in his hands prop- erty belonging to the debtor, sufficient to satisfy the demand made against this debtor." Under this provision this question was put to the garnishee, " Have you received cotton or other produce from the defendants or from any member of the firm ? At what time ? How much cotton or produce ? " The garnishee answered, "that he had received cotton from the defendants, for account of other persons, which had been duly appropriated according to directions received with said cotton, previous to the service of the attachment or garnishment in this case." The answer was held to be evasive, and not responsive to the ques- tion, and the garnisliee was charged.^ But though the answer to one of several interrogatories be not full and explicit, yet if it be, in fact, explicitly answered by the answers given to other interrogatories, that is sufficient.^ § 658. This subject elicited from the late Justice Story the following judicious remarks, which, though applicable to the peculiar system of Maine, will be regarded favorably in all cases where the question of the garnishee's liability is to be decided by the terms of his answer : " It is said that where parties, sum- moned as trustees, fail to discharge themselves, by any ambiguity in their disclosures, they are to be adjudged trustees. That proposition requires many qualifications, and may be true or not, according to circumstances. If upon the disclosure it is clear that there are goods, effects, or credits of the debtor in the hands of a trustee, but it is left uncertain by the disclosure whether the goods, effects, or credits are affected by interests, liens, or claims of third persons or not, and the trustee has knowledge of all the 1 Toothaker v. Allen, 41 ]\Iaine, 324 ; 3 Maduel v. Mousseaux, 28 Louisiana Whitney i-. Kelly, 67 Ibid. 377. Annual, 691. 2 Hart V. Dahlgreen, 16 Louisiana, 559. [579] § 658 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. facts, and withholds them, or evades a full examination ; that may furnish a good ground to presume everything against him, so far as there are ambiguities. But if he fully and clearly dis- closes all he knows, and upon the whole evidence it is left in reasonable doubt whether, under all the circumstances, he be trustee or not ; in such case, I apprehend, he is entitled to be discharged. A different doctrine would be most perilous to the supposed trustee ; because he possesses no power to compel dis- closures from third persons relative to the property ; and no extraneous or collateral evidence of third persons is admissible in the suit, to establish or discharge his liability. It is to be decided solely and exclusively by his answer. He might, upon any other doctrine, be innocently compelled to pay over the same property twice to different persons holding adverse rights, because he might be without any adequate means of self-protection. The law, therefore, will not adjudge him a trustee, except upon clear and determinate evidence drawn from his own answers." ^ In another case the same eminent jurist said : " I agree that doubt- ful expressions may be construed most strongly against the trus- tees, if they admit of two interpretations ; but the}'^ are not to be tortured into an adverse meaning or admission. The answers are not to be more rigidly, or differently construed from what they would be in a bill in chancery. If the answers are not full, the plaintiff is at liberty to propound closer interrogatories ; but he is not to charge parties upon a mere slip or mistake of certainty, or because they do not positively answer what in conscience they do not positively know." ^ 1 Gordon v. Coolidge, 1 Sumner, 637. ^ United States v. Langton, 5 Mason, 280. [580] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658 a CHAPTER XXXIV. JUDGMENT AGAINST THE GARNISHEE. § 658 a. We have seen that an indispensable prerequisite to a judgment against the garnishee is the rendition of a judgment aeainst the defendant.^ There is no doubt that that fact should be shown in the record ; else the judgment against the garnishee will appear without foundation.^ But the question arises, What constitutes the record in a garnishment proceeding ? and this depends upon the manner in which that proceeding is instituted. If the garnishee is summoned under an attachment, the true view seems to be, that the garnishment, though in some sense a distinct suit, belongs to, and is a part of, the record in the attachment suit.^ But there are two other modes in which gar- nishees may be summoned in courts of law, viz. : 1. By a statutory proceeding under a judgment, but not under an execution on the judgment ; and 2. By a statutory proceeding under an execution. In the former, there is necessarily some step to be taken by the judgment plaintiff, to initiate the garnishment ; in the latter, there is generally nothing required but the issue of an execu- tion, under which garnishees may be summoned, as under an attachment. In the latter form of proceeding, the record of the case against the garnishee is the execution, the return of the offi- cer thereon, the interrogatories to, and answer of, the garnishee, and the judgment ; and in such a record the date and amount of the judgment against the defendant necessarily and sufficiently appear by the execution. But in the other case, how is the fact 1 Ante, § 460. exceptions, nor by any order of court 2 Zurcher v. Magee, 2 Alabama, 253 ; made a part of the record, but was yet Blair v. Rhodes, 5 Ibid. 618; Case v. referred to and identified in the judgment Moore, 21 Ibid. 758; Bean v. Barney, 10 entry, sliould be treated as pnrt of tlie Iowa, 498; Toll v. Knight, 15 Ibid. 370. record. In Rankin v. Simonds, 27 Illi- 3 Faulks V. Heard, 31 Alabama, 516. nois, 352, it was held, that the intcrroga- See Wyman v. Stewart, 42 Alabama, tories to, and answer of, tlie garnishee 163, where it was held, that the answer, are part of the record, and need not be although not made a part of the bill of preserved by a bill of exceptions. [581] § 658 a JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. of the rendition of the judgment, or the amount thereof, to appear? In Tennessee, in a contest between a garnishment under a proceeding by attachment in equity, and a garnish- ment under an execution, it was held, that the neglect to file a certified copy of the judgment upon which the execution issued, was a fatal omission ; from which holding it is inferable that it would have been sufficient to produce such copy.^ In Alabama, in such case, it is necessary for the judgment plaintiff, in order " to obtain process of garnishment against any person supposed to be indebted to the defendant, in any cause where execution cannot issue on the judgment, to make affidavit that such person is supposed to be indebted to, or have effects of the defendant in his possession or under his control, and that he believes process of garnishment against such person is necessary to obtain satisfaction of such judgment." The record in such a case would consist of the affidavit and summons, the return of the officer, and the interrogatories, answer, and judgment in the gar- nishment proceeding. The judgment against the defendant is, properly speaking, no portion of the record, unless incorporated into the judgment against the garnishee, or made part of the record by a bill of exceptions.^ Indeed, it was held, that a judg- ment against the garnishee in such a proceeding was fatally defective, because it did not recite the amount of the judgment against the defendant ; ^ but this, perhaps, is more strict than necessary. It should be enough if, in any way, in the record of the garnishment proceeding, the amount of that judgment appears. And this was the view taken by the Supreme Court of Alabama, where the affidavit set forth the date and amount of the judg- ment against the defendant, and the judgment entry against the garnishee recited that he waived objection to the rendition of a judgment against him, because of its not appearing, as required by the terms of the statute above quoted, that no execution could issue on the judgment against the defendant. The court held, that his admission, contained in this waiver and his answer, was an admission of the existence of the judgment described in the affidavit, and was sufficient proof, as against him, of that fact.* 1 Alley V. Myers, 2 Tennessee Ch'y, ' Faulks v. Heard, 31 Alabama, 516; 206. Chambers v. Yarnell, 37 IbiJ. 400. 2 Gunn V. Howell, 27 Alabama, 663; * Jackson v. Shipman, 28 Alabama, Faulks V. Ilcarrl, 31 Ibid. 51G ; Gould v. 488. Meyer, 36 Ibid. 565. [582] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658 hh But, where, in such a proceeding, the affidavit did not show the amount of the judgment against the defendant, it was held, that any judgment against the garnishee was erroneous.-^ § 658 I. It is not necessary, unless required by statute, that the judgment against the garnishee should be taken at the time of that against the defendant. Forbearance of the plaintiff to take it then, is no waiver of his right to do so afterward .^ In Alabama it is held, that when a garnishee submits to answer, he continues before the court, for the purpose of receiving its judg- ment upon his answer, until after judgment shall have been rendered against the defendant ;^ and that judgment may be ren- dered against the garnishee at a term subsequent to that at which it was given against the defendant;* and that in such case, the garnishee is not entitled to notice of the motion for the judg- ment.° And in Louisiana, in a case where the garnishee's answer had been suffered to remain six years without any proceeding upon it, it was not regarded as releasing the garnishee from the jurisdiction of the court, but, coupled with other facts, as having great weight with the court in relieving him against any pro- ceedings which might be hard or precipitate against him.^ And in the Philadelphia District Court it was ruled, that an attach- ment should not be dissolved because of the lapse of fourteen years after the judgment, without the plaintiffs taking out a scire facias against the garnishee.'' § 658 hh. The death of a garnishee, after his answer, arrests all proceedings as to him, and a judgment rendered against him then is erroneous. Though the garnishee's death will have no effect upon the main action, yet no further proceeding can be had except against his personal representative ; which may be done b}' scire facias if no other statutory mode be prescribed. If 1 Stickley v. Little, 29 Illinois, 315. nual, 567. The failure of an attaching 2 Sturges V. Kendall, 2 Louisiana An- plaintiff, for many years, to prosecute rnial, 565 ; Phillips v. Genaon, 43 Iowa, a garnishment proceeding to judgment 101. against the garnishee, and the interven- 3 Graves v. Cooper, 8 Alabama, 811 ; ing insolvency of the garnishee, do not Lockhart v. Johnson, 9 Ibid. 223; Bust- deprive the plaintiff of his riglit to prose- wick V. Beach, 18 Ibid. 80. cute his claim against the defendant to * Leigh V. Smith, 5 Alabama, 583; judgment. Noble v. Merrill, 48 Maine, Kobinson v. Starr, 3 Stewart, 90. 140. 5 Leigh V. Smith, 5 Alabama, 583. "^ Weber v. Carter, 1 Philadelphia, 6 Slatter v. Tiernan, 6 Louisiana An- 221. [583] § 658 d JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. the garnishee, at his death, had in his hands specific chattels belonging to the defendant, which go into the hands of his repre- sentative, the court may compel them to be delivered up for application to the plaintiff's judgment when recovered.^ A judg- ment de bonis testatoris against an executor as garnishee binds neither the testator's estate, nor the executor personally .^ § 658 c. When in an attachment suit, the question arises whether there shall be a judgment against the garnishee, the case is ordinarily between him and the plaintiff alone ; but the de- fendant is not wholly cut off from interfering to prevent the judgment. If his property in the garnishee's hands is by law exempt from execution ;^ or if the attachment has been dissolved by the defendant's giving bail ; * or if the debt due from the garnishee to him be such as the law forbids being reached by garnishment ;^ or if the judgment against the defendant has been satisfied ; he may interpose to prevent a judgment against the garnishee. But he cannot do so to set up, on behalf of the lat- ter, a personal exemption from garnishment ; this can be done only by the garnishee. Thus, where an incorporated city was garnished, and the defendant attempted to interpose the objec- tion that a municipal corporation could not be held as garnishee, it was decided that he had no right to do so.*^ Nor can he move to discharge the garnishee on account of jurisdictional defect in the writ under which the garnishee was summoned, when the defect had been amended with his consent and that of the garnishee.'' § 658 d. Nothing is more important in the taking of a judgment against a garnishee, than that he should have had a fair hearing before the court on the question of his liabiKty. If that be denied him, the judgment against him will be reversed by the revising tribunal. Thus, where a garnishee, on an examination before a commissioner, refused to answer a certain interrogatory, on the ground that it was impertinent, and the question was submitted to the court whether he was legally bound to answer, and the 1 Parker v. Parker, 2 Hill Cli'y, 35. 6 Qakes v. Rlarquardt, 49 Iowa, 643. * Bickle r. Chrisman, 76 Virginia, 678. '' Wales v. Muscatine, 4 Iowa, 302; 8 Wigwall V. Union C. & M. Co., 37 Burton v. District Townsliip, 11 Ibid. 1G6. Iowa, 129. ' Barry v. Ilogan, 111) Mass. 209. ^ Myers r. Smith, 29 Oliio State, 120. [584] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658 e court decided thcat he was, but refused to permit him, though he offered to do so, and rendered judgment against him ; the judg- ment was reversed, on the ground that it was the duty of the court either to have recommitted the whole matter to the com- missioner for further investigation, or to have taken the answer in open court.-^ § 658 e. In many States, a judgment by default may be taken against a garnishee upon his failing to answer. If he permit such a judgment, when in fact he ought not to be charged, be- cause not a debtor to, or holding any effects of, the defendant, he \& primd facie guilty of negligence, and can obtain no relief, un- less, by rebutting the presumption of negligence, he can induce the court to set aside the judgment, and give him leave to an- swer. It is not such a case as a court of equity will interfere in, though he show that the judgment is inequitable. To entitle himself to equitable relief, he must not only show that injustice has been done him by the judgment, but that the judgment was obtained without any fault or neglect on his part.^ When a garnishee in default comes into court, seeking to be allowed to answer, the default will not be set aside unless he show a sufficient excuse for his failure to appear and answer at the proper time. He cannot carelessly or obstinately fail to appear when required, and afterwards come in and enter his appearance, with all the rights and privileges of one who has been diligent in responding in the first instance. A negligent garnishee is no more entitled to protection than any other negli- gent party .^ And he is as much bound to look after the proceed- ings against hira, and protect himself from an improper judgment, as a defendant in an ordinary suit is. If, by his failure in this respect, the plaintiff gain an advantage over him, he is without relief. Thus, where a garnishee answered, denying indebtedness to the defendant, and afterwards the case was taken by change of venue to another county, where the plaintiff filed a replication 1 Sawyer v. Webb, 5 Iowa, 315. Miller, 51 Texas, 443 ; Oregon R. & N. 2 Hair v. Lowe, 19 Alabama, 224; Co. y. Gates, 10 Oregon, 514. Peters v. League, 13 Maryland, 58; ^ Fifield v. Wood, 9 Iowa, 250; Par- Windwart v. Allen, Ibid. 196 ; Atlantic mc-nter v. Cliilds, 12 Ibid. 22 ; Willet v. F. & M. Ins. Co. V. Wilson, 5 Rhode Price, 32 Georgia, 115; Freidenrich v. Island, 479; Rhode Island Ex. Bank v. Moore, 24 Maryland, 295; Anderson v. Hawkins, 6 Ibid. 198; Danaher v. Pren- Graff, 41 Ibid. 601; Lawrence v. Smith, tiss, 22 Wisconsin, 311 ; Freeman v. 45 New Hamp. 533. [585] § 658/ JUDGMENT AGAINST THE GAKNISHEE. [CHAP. XXXIV. to the answer taking issue thereon, of which no notice was given the garnishee, and upon a trial a verdict was found against the garnishee, which he moved to set aside ; it was held, that it was his dut}' to take notice of what was done in the case, the same as any other party, and to follow the case ; and being in default in this respect, the judgment against him could not be set aside. ^ In Louisiana, if a garnishee fails to answer the interrogatories propounded to him, the court orders them to be taken for con- fessed ; and under this system of practice it was held, that such an order might, in the sound discretion of the court, be set aside, and the garnishee be allowed to answer, where the order was made before judgment was obtained against the defendant; inas- much as, until that event, the taking of the interrogatories for confessed could be of no benefit to the plain tiff.^ In Illinois it is held, that a refusal by the court to set aside a judgment by default against a garnishee, will not be reviewed by the appellate court ; ^ and in Georgia, that the discretion of a court in setting aside such a judgment will not be reviewed, where it appeared that the garnishee was charged for more than he actually owed the defendant, and that in not answering he acted under a mistake of his legal duty, and not in bad faith.* But if the garnishee is led by the plaintiff's conduct to believe that the garnishment was no longer to be pressed against him, and he therefore does not answer, a judgment by default against him will be set aside.^ § 658/. In Rhode Island, if a garnishee neglects to render an account, on oath, of what personal estate, belonging to the de- fendant, he had in his hands at the time he was served with gar- nishment process, the law declares that he shall be liable, in an action on the case, to satisfy the judgment recovered against the attachment defendant. In an action of that description, tried before a jury, where a verdict was rendered against the defendant, he moved in arrest of judgment, on the ground that the law authorizing the action was in conflict with the clause of the 1 Chase ?•. Foster, 9 Iowa, 429. * Russell v. Freedmen's Savings Bank, - Rose V. Wlialey, 14 Louisiana Annual, 50 Georsiia, 575. See Evans v. Mohn, 65 374. Iowa, 302. 8 United States Express Co. v. Bed- ^ Platen v. Byck, 50 Georgia, 245. bury, 34 Illinois. 459. [586] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658 g Constitution of the State, which declares that no person shall be " deiDrived of life, liberty, or property, unless by the judgment of his peers, or the law of the land ; " and with the Fourteenth Amendment of the Constitution' of the United States, which declares that no State shall '' deprive any person of life, liberty, or property without due process of law." The court overruled the motion in arrest, and ordered judgment to be entered on the verdict ; and in its opinion thus stated the point of the case : " The counsel for the defendant contends that he ought to be permitted to show in the action against him what estate he has in his hands belonging to the original defendant, or how much he is indebted to the original defendant, and that the judgment in favor of the plaintiff ought to be limited to the amount of such estate or indebtment. Undoubtedly this would be so if the de- fendant had not already had the opportunity to show the amount, and by showing, to limit his liability to it. The question is whether, having once had and neglected or refused the opportu- nity, he is entitled to have it a second time, or whether it is within the power of the legislature to provide that, upon proof of such neglect or refusal, he shall be charged to the full extent of the original judgment in consequence of his neglect or refusal, without regard to the estate in his hands. We know of no reason why it has not such a power. No authority is cited to show that it has not.'" ^ § 658 g. A garnishee in default is as much entitled as a de- fendant would be to a strict observance of the steps prescribed by law as preliminary to a final judgment against him. Thus, under a statute which provided that " if the garnishee fail to appear and answer, a conditional judgment must be rendered against him for the amount of the plaintiffs claim, as ascertained by the judgment, to be made absolute if he does not appear within the first three days of the next term and answer," a final judgment against the garnishee was reversed because no condi- tional judgment was entered, though at the end of the record entry of the judgment against the defendant these words were added : " Judgment nUi as to John T. Bonner and other gar- nishees, answer on file, and cont'd." These words were held not 1 Vaughan v. Furlong, 12 Rhode Island, 127. [587] § 659 JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. to amount to a judgment at all.^ And where the law required that, in order to obtain a writ of garnishment under a judgment, an affidavit should be filed ; and a writ was issued without the required affidavit; and the writ recited the judgment as for 8220.87, when in fact, it was for $2,020.87 ; and judgment by default was taken against the garnishee for the latter sum ; it was set aside because the plaintiff could take such judgment for no more than the amount specified in the writ; and the writ was quashed because there was no affidavit.^ § 659. Where the garnishee's liability is to be determined by his answer, either because it is by law conclusive, or because the plaintiff does not see proper to controvert its statements, the rules governing the judgment to be rendered thereon are few and simple. They may be briefly stated thus : — 1. In order to charge the garnishee on his answer, there must be in it a clear admission of a debt due to, or the possession of money or other attachable property of, the defendant,^ 2. Where there is not an explicit admission of a debt, but, from the statements of the answer, indebtedness to, or the pos- session of attachable property of, the defendant, clearly appears, judgment should go against the garnishee.* And in arriving at the facts, the plain and natural import of the language of the 1 Bonner v. Martin, 37 Alabama, 83 ; Pierce v. Carleton, 12 Illinois, 358 ; Peo- Goode V. Holcombe, Ibid. 9i. See John- pie v. Jolinson, 14 Ibid. 342 ; Bliss v. son V. McCutchings, 43 Texas, 553. Smith, 78 Ibid. 359 ; Cairo & St. L. R. R. 2 Hoffman v. Simon, 52 Mississippi, Co. v. Killenberg, 82 Ibid. 295 ; Cairo & 302. St. L. R. R. Co. v. Ilindman, 85 Ibid, 3 Wetherill v. Flanagan, 2 Miles, 243 ; 521 ; Ellicott v. Smith, 2 Cranch C. C. Bridges v. North, 22 Georgia, 52 ; Thomp- 543 ; Porter v. Stevens, 9 dishing, 530 ; son V. Fiscliesser, 45 Ibid. 369; Allen r. Lomerson v. Huffman, 1 Dutcher, G25; Morgan, 1 Stewart, 9 ; Presnall v. Mabry, Williams v. Housel, 2 Iowa, 154 ; Hunt v. 3 Porter, 105; Smith v. Chapman, G Ibid. Coon, 9 Indiana, 537; Reagan v. Pacific 365; Mi'ms v. Parker, 1 Alabama, 421 ; Railroad, 21 Missouri, 30; DriscoU u. Foster v. Walker, 2 Ibid. 177; Fortune Hoyt, 11 Gray, 404; Smith v. Clarke, 9 V. State Bank, 4 Ibid. 385 ; Connoley u. Iowa, 241 ; Morse v. Marshall, 22 Ibid. Cheeseborough, 21 Ibid. 166 ; Powell v. 290 ; Church v. Simpson, 25 Ibid. 408 ; Sammons, 31 Ibid. 552 ; Estill v. Goodloe, Fithian v. Brooks, 1 Pliiladelpliia, 2G0; 6 Louisiana Annual, 122; Coe r. Rocha, Allegheny Savings Bank r. Meyer, 59 22 Ibid. 590; Harney r. Ellis, 11 Smedes Penn. State, 361; Pickler v. Rainey, 4 & Marshall, 348 ; Brown v. Slate, 7 Hum- Heiskell, 335. phrevs, 112; Lorman v. Phoenix Ins. Co., * Baker r. Moody, 1 Alabama, 315; 33 Michigan, 65; Spears i-. Chapman, 43 Mann r. Buford, 3 Ibid. 312; Pickler w. Ibid. 541 ; Weirich v. Scribner, 44 Ibid. Rainey, 4 Heiskell, 335 ; Donnelly v. 73 ; Davis v. Pawlette, 3 Wisconsin, 300 ; O'Connor, 22 Minnesota, 309. Wilson V. Albright, 2 G. Greene, 125; [588] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 639 answer, taken together, must control, and the garnishee is to be charged or not, according as the evidence afforded by the whole answer preponderates.^ 3. If there be a debt due from the garnishee, or money in his hands, the amount of either will determine the extent of the gar- nishee's liability ; not exceeding in any case the amount for which the plaintiff recovers judgment against the defendant.^ 4. If the garnishee have property other than money, or have rendered services for the defendant, the value thereof, in either case, must appear in the answer, or there can be no judgment for the plaintiff on the answer ; for there is nothing from which the court could find a definite amount.-^ 5. Where the garnishee denies being indebted to, or having in his possession attachable property of, the defendant ; ^ or his an- swer, though vague and inartificially drawn, contains substantially a denial thereof r^ judgment must be rendered in his favor, unless, from the statements of the answer, it appear that the denial is untrue ; in which case the denial will be disregarded and judg- ment rendered against him.^ 6. Where he neither expressly admits nor denies his liability, but states all the facts, and leaves the court to decide the matter of law arising thereon, there can be no judgment against him, unless there clearly appear on the face of those facts sufficient to justify the court in pronouncing such judgment." If it be left in reasonable doubt whether he is chargeable or not, he is entitled to a judgment in his favor.^ 7. Where the answer of the garnishee discloses circumstances which raise a question of fraud in the title to property in his 1 Cardany v. N. E. Furniture Co., 107 ^ Wright v. Foord, 5 New Hamp. 178; Mass. 110. Ferine v. George, 5 Alabama, O-ll ; Bebb 2 Hitchcock V. Watson, 18 Illinois, 289 ; v. Preston, 1 Iowa, 4G0. Talbott V. Tarlton, a J. J. Marshall, 641 ; '' United States v. Langton, 5 Mason, Wilcox 1-. Mills, 4 Mass. 218 ; Sanford v. 280; Picquet v. Swan, 4 Mason, 443; Bliss, 12 Pick. 116; Meacham v. McCor- Rich v. Reed, 22 Maine, 28; Oliver v. bitt, 2 Metcalf, 352 ; Allen v. Hall, 5 Ibid. Atkinson, 2 Porter, 54(3 ; Frost ;•. Patrick, 263; Brown v. Silsby, 10 New Hamp. 3 Smedes & Marshall, 783; Williams v. 521 ; Burrus v. Moore, 63 Georgia, 405. Jones, 42 Mississippi, 270. 3 Bean v. Bean, 33 New Hamp. 279. ^ Gordon v. Coolidge, 1 Sumner, 537 ; * Wright V. Foord, 5 New Hamp. 178 ; Pierce v. Carleton, 12 Illinois, 3-58 ; Ban- Jones V. Howell, IG Alabama, 695 ; Mc- ning v. Sibley, 3 Minnesota, 38',) ; Pioneer Ree I'. Brown, 45 Te.xas, 503 ; Cairo & Printing Co. v. Sanborn, Ibid. 413 ; St. L. R. R. Co. V. Killenberg, 92 Illinois, Schafer v. Vizena, 30 Ibid. 387 ; Morse 142. V. Marshall, 22 Iowa, 290. 5 Smith V. Bruner, 23 Mississippi, 508. [589] § 659 JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. hands, the court will not take cognizance of, and decide that question on the answer alone, it being a question which should be referred to a jury.^ 8. Where the garnishee alleges that he was induced by false and fraudulent representations made by the defendant, who knew them to be false, to enter into the contract with the defendant, in regard to which it is sought to charge him ; he cannot be charged on his answer on that account.^ 1 Rich V. Reed, 22 Maine, 28. « Y&y v. Sears, 111 Mass. 154. [590] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 661 CHAPTER XXXV. EXTENT OP garnishee's LIABILITY AS TO AMOUNT, AND AS TO THE TIME TO WHICH THE GARNISHMENT RELATES. § 660. As an attaching creditor can acquire, through the attachment, no greater rights against the garnishee than the de- fendant has, except in cases of fraud, it follows that the extent of the garnishee's liability is to be determined by the value of the defendant's property in his hands, or the amount of the debt due from him to the defendant.^ The garnishee is a mere stake- holder between the parties, and it would be manifestly unjust, as long as he holds that position, to subject him to a judgment for a greater amount than that in his hands. Where, therefore, one is summoned as garnishee in several actions, and discloses in any of them that judgment has been rendered against him in a prior case for the whole amount in his hands, he will be dis- charged, unless the plaintiff in the prior suit can make his debt otherwise than by recourse to the garnishee.^ § 661. It is a recognized right of a garnishee to discharge him- self from personal liability, by delivering into court the property of the defendant which is in his hands. In such case the prop- erty is wholly within the control of the court, and the garnishee is relieved from all responsibility therefor, and is not considered as having any further connection with or concern in the proceed- ings. It was, therefore, held, that under such circumstances he could not prosecute a writ of error to a decision of the court disposing of the property.^ 1 Ante, § 458 ; Talbott v. Tarlton, 5 64 Penn. State, 307 ; Coble v. Nonemaker, J. J. Marshall, 641 ; Wilcox v. Mills, 4 78 Ibid. 501 ; St. Louis v. Regenfuss, 28 Mass. 218 ; Sanford v. Bliss, 12 Pick. IIG ; Wisconsin, 144. Meacham v. McCorbitt, 2 Metcalf, 352 ; 2 Bullard r. Hicks, 17 Vermont, 198. Allen V. Hall, 5 Ibid. 263 ; Brown v. See Robeson v. M. & A. Railroad Co., 13 Silsby, 10 New Hamp. 521 ; Burton v. Louisiana, 465. District Township, 11 Iowa, 166 ; Peet ^ Lewis v. Sheffield, 1 Alabama, 134. V. Whitmore, 16 Louisiana Annual, 48; See Bickle v. Chrisman, 76 Virginia, Woodhouse v. Commonwealth Ins. Co., 678. [591] § G63 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. § 662. The garnishee will not, where he does not assume the attitude of a litigant, be chargeable with the costs of the pro- ceedings against him, or of those against the defendant, unless it appear that he has sufficient in his hands for that purpose, after satisfying the debt.^ But if he denies indebtedness, and an issue is formed to try the fact, the proceedings assume all the nature and formalities of a suit between the plaintiff and the garnishee, and all the consequences of a suit attend tliem. It is no longer a case in which the garnishee merely complies with the process of the court, occupying more the character of a witness than a party, but he is, to every intent, a party ; and may summon wit- nesses, obtain continuances, etc., and swell the costs as much as the defendant could have done. In such a case, if the issue be found against him, he is liable to a judgment for the costs which have accrued on the garnishment proceedings, though there be no statute on the subject.^ And so, if the garnishee refuses to answer, or seeks to avoid a fair investigation of his liability, he is chargeable with an}^ costs occasioned by such conduct.^ And so, if the amount due from him to the defendant be in contro- versy, and the plaintiff establish that there is more in the gar- nishee's hands than he admitted. • But if the garnishee's admission be sustained, he is not liable for costs.^ § 663. Whatever the amount of the garnishee's indebtedness to the defendant, or of the defendant's effects in his hands, over and above that of the plaintiff's judgment against the latter, no judgment can be taken against him for more than sufficient to cover the plaintiff's claim against the defendant, and costs.^ And 1 Gracy v. Coates, 2 McCord, 224; 3 Randolph v. Heaslip, 11 Iowa, 37. Walker v. Wallace, 2 Dallas, 113 ; Wither- * Newlin v. Scott, 20 Penn. State, 102 ; spoon V. Barber, 3 Stewart, 335; Bread- Breading v. Siepworth, 29 Ibid. 396. ing V. Siegwortli, 29 Penn. State, 396; 5 Tyler v. Winslow, 40 Maine, 348; Tupper V. Cassell, 45 Mississippi, 352; Hitchcock v. Watson, 18 Illinois, 289; Prout ?7. Grout, 72 Illinois, 450 ; Johnson Doggett v. St. Louis M. & F. Ins. Co., V. Delbridge, 35 Michigan, 436 ; Balti- 19 Missouri, 201 ; Timnions v. Johnson, more, O., & C. R. R. Co. v. Taylor, 81 15 Iowa, 23. The rule stated in the text, Indiana, 24. it will be noticed, applies to systems of 2 Thompson i;. Allen, 4 Stewart & Por- practice, prevalent everywhere, I think, ter, 184; Newlin v. Scott, 26 Penn. State, except in Illinois, authorizing the judg- 102 ; Breading v. Siegwortli, 29 Ibid. 396 ; ment against tlie garnishee to be ren- llerring v. Johnson, 5 Phiiadelpliia, 443; dered in favor of the plaintiff. In that Lucas V. Campbell, 88 Illinois, 447 ; Han- State, however, wlicn a garnishee is lia- nibal & St. J. R. R. Co. v. Crane, 102 Ibid, ble, the judgment is rendered in favor 249; Strong v. HoUon, 39 Michigan, 411. of the defendant, for the benefit of such [592] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 665 as the judgment against him is only intended to secure the satis- faction of that against the defendant, if the plaintiff obtain sat- isfaction in part b}' other means, he can proceed against the garnishee for no more than the unsatisfied remainder ; ^ and if he obtain satisfaction in full, his recourse against the latter is at an end. 2 § 604. In this connection may properly be considered the gar- nishee's liability for interest on his debt to the defendant, pen- dente lite. If he has put the defendant's money at interest, he is liable for the interest.^ And where the plaintiff attaches in his own hands a debt he owes to the defendant, it has been held, that interest thereon continues to run during the pendency of the attachment.^ But wliere a third person is subjected to gar- nishment, whether he shall be required to pay interest on his debt during the time he is restrained by the attachment from paying the debt, is a matter which has been much discussed. § 665. In deciding this question, the first point to be inquired into is, whether the garnishee's debt to the defendant is one bear- ing interest by agreement, or whether the interest for which it is sought to charge him accrues by wa}' of damages. If there was no contract of the garnishee to pay interest, he cannot be charged with it ; for the plaintiff can hold him for no more than the defendant could.^ If the interest accrues by way of damages for a wrongful detention of the principal sum by the debtor, he can- not be charged with it, because, having been restrained by the garnishment from paying his debt, he is in no fault for not paj^- ing, and there is therefore no wrongful detention, and therefore no Hability for damages.^ But where the garnishee's debt is one attacliing and judgment creditors, as are 3 Brown v. Silsby, 10 New Hamp. 521 ; entitled to share in its proceeds ; and Blodgett v. Gardiner, 45 Maine, 542 ; there the judgment is for the whole debt Abbott v. Stinchfield, 71 Ibid. 213. of the garnishee to the defendant, though * Willing v. Consequa, Peters C. C. it be more than is needed to satisfy the 301. attachment; and if more, the surplus is 5 Lyman v. Orr, 26 Vermont, 119; for the benefit of the defendant. Stahl Adams v. Cordis, 8 Pick. 200 ; Quigg v. V. Webster, 11 Illinois, 511 Webster v. Kittredge, 18 New Hamp. 137. Steele, 75 Ibid. 544. 6 Prescott v. Parker, 4 INIass. 170; 1 Spring I'. Ayer, 23 Vermont, 516; Adams i'. Cordis, 8 Pick. 260; Swamscot post, § 673. • I\Iachine Co. v. Partridge, 5 Foster, 360 ; 2 Thompson i\ Wallace, 3 Alabama, Irwin v. Pittsburgh & C. R. R. Co., 48 132 ; Price i: Higgins, 1 Littell, 274. Penn. State, 488. 38 [593] § 665 EXTENT OF GAENISHEE'S LIABILITY. [CHAP. XXXV. which by contract bears interest, the latter is as much a part of the debt as the principal ; and it is in reference to such cases that the question of the garnishee's liability for interest has most fre- quently arisen. On this point, it may be laid down as a general l^roposition, that a garnishee ought not to be charged with inter- est on his debt to the defendant, while he is, by the legal opera- tion of an attachment, restrained from making payment ; ^ whether the attachment terminate in favor of the plaintiff or the defendant.^ This applies, however, only to cases where the gar- nishee stands in all respects rectus in curia^ as a mere stakeholder, and not as a litigant ; and it has received important qualifica- tions, which have in reality almost unsettled it. The courts have gone into inquiries as to whether the garnishee used the money during the pendency of the attachment ; and as to the existence of fraud, or collusion, or unreasonable delay occasioned by the conduct of the garnishee ; and various decisions have been given, to which we will now direct attention. In Pennsylvania, the general rule is as above stated ; but if there is any fraud, collusion, or unreasonable delay occasioned by the conduct of the garnishee, he will be charged with interest.^ In the Circuit Court of the United States for Pennsylvania, the presumption was allowed in favor of the garnishee that he had not used the money during the pendency of the attachment ; but the court considered that if he did use it, it was but just that he should pay interest.^ And the same rule was laid down by the Supreme Court of the United States.^ In INIaine, the garnishee is entitled to the benefit of the pre- sumption that he was ready to pay, and had reserved and was holding the money unemployed to await the decision of the cause ; but where the facts rebut such presumption, he is chargeable with interest,*^ 1 Fitzgerald r. Caldwell, 2 Dallas, 215; Hodgson, 9 Penn. State, 4G8 ; Irwin v. Willing )•. Consequa, Peters C. C. 001 ; Pittsburgh & C. R. R. Co., 43 Ibid. 488; Stevens v. Gwatbmey, 9 Missouri, G28 ; Jackson's Ex'r v. Lloyd, 44 Ibid. 82; Colien V. St. Louis Perpetual Ins. Co., 11 Alleglieny Savings Bank v. Meyer, 59 Ibid. 374 ; Little v. Owen, 32 Georgia, Ibid. 3G1 ; Rushton r. Rowe, 64 Ibid. 03; 20; Clark v. Powell, 17 Louisiana An- Jones r. :\Ian. Nat. Bk., 99 Ibid. 317. nual, 177. * Willing v. Consequa, Peters C. C. 2 Mackey v. Hodgson, 9 Penn. State, 301. 408. ^ Mattingly v. Boyd, 20 Howard Sup. 3 Fitzgerald v. Caldwell, 2 Dallas, Ct. 128. 215; 1 Yeates, 274 ; Updegraff v. Spring, 6 Norris ;.'. Hall, 18 Maine, 332; Blod- 11 Sergeant & Rawle, 188; Mackey v. gett i-. Gardiner, 45 Ibid. 542. [594] CHAP, XXXV.] EXTENT OF GAKNISHEE's LIABILITY. § 665 In Massachusetts, the presumption is that the garnishee is pre- vented by law from paying the debt, or using the money ; and if tlie fact be that he does not use it, he will not be chargeable with interest. But if this locking up of the fund is merely a fiction, the garnishee in truth making use of it all the time the matter is in suspense, he will be liable for interest. A figure used by the court, in a case involving this question, has much illustrative force. " The service of the writ turned the key upon the fund, but the trustee keeps the key, unlocks the chest, and takes the money in his own hands. In such case, he cannot be allowed to say, ' the fund was locked up, and therefore I will pay nothing for the use of it.' This is the reason of the thing, and there is no authority against it." ^ In Connecticut, if the garnishee mingles the defendant's money with his own, and treats it as such, and does not so keep it that he can pay it over to the rightfid owner when called on for that purpose, but uses it indiscriminately with his own, he is chargeable with interest.^ In Maryland, if the garnishee assumes the position of a litigant, he is chargeable with interest.^ In Virginia, if he keep the defendant's money in his hands during the pendency of the attachment, he is ^jresumed to use it, and will be charged with interest. To avoid this, he must pay the money into court.^ In Georgia, the presumption is that the garnishment stays the property in the hands of the garnishee, and the law considers it to remain in statu quo, until ordered to be paid out by the judgment of the court. But if the fact be that the fund never was set apart or deposited, but continued mixed with the rest of the gar- nishee's business capital, he will be charged with interest. And it is there considered, that a resistance of the attachment by the garnishee will entitle the plaintiff to recover interest against him,^ In Mississippi, the rule is, that if a garnishee wishes to avoid paying interest joendeiite lite on his debt to the defendant, he can do so by paying the money into court ; and if he does not do that 1 Adams v. Cordis, 8 Pick. 260. IMunford, 259 ; Ross v. Austin, Ibid. 502 ; 2 Woodruff ?•. Bacon, 35 Conn. 97. See Templeman v. Fauntleroy, 3 Randolph, Candee v. Skinner, 40 Ibid. 464. 434. 3 Chase v. Manhardt, 1 Bland, o33. 6 Georgia Ins. and Trust Co. v. Oliver, * Tazewell v. Barrett, 4 Hening & 1 Georgia, 38. [595] § 666 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. it is proper that the continued payment of interest should fall on him, rather than its loss should be suffered by the creditor.^ In Missouri, the garnishee's denial of indebtedness to the defendant fully rebuts any presumption that he had had the money lying idle by him, ready to pay the plaintiff's demand wlien judgment should be obtained.^ In Ohio, nothing short of proof that the garnishee actually held the money in readiness to be disposed of as directed by the court, will prevent his being charged with interest.^ In Iowa, the garnishee is presumed to have kept the money as a separate fund ; but this presumption may be overcome, by his assuming the attitude of a litigant, or by evidence showing that he did not keep it as a separate fund ; and if overcome, he is charge- able with interest.^ The deductions from the decisions thus cited may be thus reca- pitulated : 1. The presumption is, generall}', that the garnishee keeps the money by him, set apart for the payment of the attach- ment. 2. This presumption may be rebutted, either by the course of the garnishee in assuming the position of a litigant, or by any competent evidence : while in Virginia and Mississippi, the gar- nishee can avoid liability for interest only by paying the money into court ; and in Massachusetts, must make it appear that he has not used the money. The course of decision, therefore, is clearly adverse to exempting a garnishee from this liability ; and the probabihty is that eventually the rule as laid down in Massa- chusetts, will be generally acquiesced in. § 666. The foregoing considerations apply only to the case of the garnishee's liability to a judgment in favor of the plaintiff in attachment, for interest accrued pendente lite. There is, how- ever, another question which may be considered as growing out of this, and properly noticeable here. Where the debt due from the garnishee to the defendant is not wholly consumed in meeting the attachment, and the garnishee is accountable to the defend- ant for a balance, after satisfying the attachment, what rule shall govern the recovery of interest by the defendant in a suit against him who was garnishee ? Shall the latter be exempted from pay- 1 Work V. Glaskins, 33 Mississippi, 539 ; ^ Candee v. Webster, 9 Ohio State, Smith V. German Rank, 60 Ibid. 69. 452. - Stevens v. Gwathmey, 9 Missouri, * Moore v. Lowrey, 25 Iowa, 336. 63G. [596] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 667 ing any interest on any part of his debt during the pendency of the attachment ? or shall the exemption extend only to such part of the debt as it was necessary for him to retain to satisfy the attach- ment ? The latter rule has been declared in Pennsylvania, where the court said: "It would be most unreasonable, when the debt claimed is a large one, and the debt for which the attachment is- sued is a small one, that interest should be suspended, during the pendency of the action, on the whole sum. If the debt was ten thousand dollars, and one hundred only were attached in the hands of the debtor, it would shock our understanding, — all mankind would cry out against the law, — if it pronounced that the creditor should lose the interest on his ten thousand dollars, to meet the debt of one hundred dollars." ^ § 607. The garnishee's liability, considered with reference to the time of the garnishment, cannot, without the aid of special statutory provision, be extended beyond the defendant's effects or credits in his hands at the date of the garnishment. The at- tachment is the creature of the law, and can produce no effect which the law does not authorize. Its operation, when served, is upon the attachable interests then in the garnishee's possession ; and it cannot be brought to bear upon any liability of the gar- nishee to the defendant accruing after its service, unless the law so declare. And if such liability at the time of the garnishment be dependent on the happening of a contingency, which does happen afterwards, so as to create an absolute debt, yet the gar- nishee cannot be charged ; for such was not the condition of things at the time of the garnishment.^ In Massachusetts it has been uniformly held, that the garnishee cannot be charged beyond the value of the effects in his hands, or the amount of debt due from him to the defendant, when he was summoned.3 Therefore, where a lessee, bound by the terms of his lease to pay his rent quarterly, was summoned as gar- nishee of his lessor, it was decided that he could be charged only for so many quarters' rent as were due at the time of the 1 Sickman v. Lapsley, 13 Sergeant & ^ Wilcox v. Mills, 4 Mass. 218; San- Eawle, 224. ford v. Bliss, 12 Pick. 116; Meacham v. 2 Williams V. A. & K. Railroarl Co., ?A McCorbitt, 2 Metcalf, 352 ; Allen v. Hall, Maine. 201; Norton v. Soule, 75 Ibid. 5 Ibid. 263; Osborne v. Jordan, 3 Gray, 385 ; Ilopson r. Dinan, 48 Michigan, 012. 277 ; Hancock v. Colver. 90 Mass. 187 ; Peterson v. Loring, 135 Ibid. 397. [597] § 667 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. garnishment, and not for anything falling due thereafter.^ So, where goods were delivered to one to be manufactured, and the contract was entire, and the job to be paid for v/hen completed, and before its completion the owner was summoned as garnishee of the manufacturer ; it was held, that the contract was an entire one, and that at the time of the garnishment there was nothing due to the latter, and that the garnishee was not chargeable.^ So, where in an action arising from tort, verdict was rendered for the plaintiff on the 20th of April, but no judgment was entered therein until the following 8th of May, and in the mean time, on the 29th of April, the defendant was garnished ; it was decided that, as the cause of action was for a tort, on account of which the garnishee could not be charged, and as the verdict did not convert it into a debt until judgment rendered on it, there was nothing owing by the garnishee when he was summoned.^ So, in Virginia, where an agent of the defendant, employed to collect rents, was garnished, he was held not chargeable on ac- count of any rents collected by him after the garnishment.* The same doctrine obtains in Maine. There, where a son gave a bond to his father for the payment of certain sums of money, and the delivery of certain quantities of provisions, at stated times in each year of his father's life, it was held, that he could not be charged as garnishee of his father for anything not act- ually payable when he was garnished.^ In Alabama, Louisiana, California, Tennessee, Iowa, and Kansas, the same rule prevails.^ In those States in which the law gives to garnishment the effect of charging the garnishee for attachable effects coming into his hands after he is summoned, the point of time up to which he can be held liable must be determined by the terms of the statute. In some States it is when his answer is filed ; but in New Hamp- shire, where the statute makes him chargeable for " money, 1 Wood V. Partridge, 11 Mass. 488 ; A. & K. Railroad Co., Ibid. 201 ; Tyler v. Iladloy V. Peabody^ 13 Gray, 200 ; Wiiislow, 40 Ibid. 348. Brac-kett v. Blake, 7 Metcalf, 3-%. « Branch Bank v. Poe, 1 Alabama, 2 Bobinson v. Hall, 3 Metcalf, 301. 39(5; Hazard v. Franklin, 2 Ibid. 340 See Daily v. Jordan, 2 Gushing, 390; Payne v. Mobile, 4 Ibid. 333; Roby v Honnesspv v. Farrell, 4 Ibid. 2G7 ; War- Labuzan, 21 Ibid. GO ; Bean v. Miss ner v. Perkins. 8 Ibid. 518; Strauss v. Union Bank, 5 Robinson (La.), 333 Railroad Co., 7 West Virginia, 308. Norris v. Burgoyne, 4 California, 409 8 Thayer v. Southwick, 8 Gray, 220. Davenport v. Swan, 9 Ilumplireys, 180 4 Ilaffey v. Miller, 6 firattan, A-A. Morris v. U. P. R. Co., 56 Iowa, 135 6 Say ward v. Drew, 6 Maine. 203. Sec Phelps r. A. T. & S. F. R. Co., 28 Kansas, Mace V. Heald, 36 Ibid. 130; Williams ;;. 165. [598] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 6G9 goods, chattels, rights, or credits in his possession at the time of the service of the writ upon him, or at any time after,'''' it is held, that he is chargeable for all that is due from him at the time the judgment against the defendant is made up.^ § 668. This position mast be distinguished from the case of the garnishee's liability in respect of dehitum in j^i'cesenti solvendum in futuro.^ We have previously seen that such a debt may be reached by garnishment.^ There, the debt exists at the time of the garnishment, but is payable afterward : in the cases now under consideration, the debt has no existence until after the garnishment. § 669. It should also be distinguished from the case of a liability existing, but uncertain as to amount, at the time of the garnish- ment, but which afterward becomes, as to the amount, certain. There, the garnishment will attach, and the extent of the gar- nishee's liability will be determined by the subsequent ascertain- ment of the amount due. Such was a case where an insurance company was summoned as garnishee, in respect of an amount due the defendant for a loss of property insured by the company, which happened before but was not adjusted until after the garnishment ; and the company was held liable.^ Much more, in such a case, is the company liable, after the claim of the insured for a loss has been recognized and voted to be paid.^ But where an insurance company was garnished, after a loss, but before notice or proof thereof, and the policy issued by it to the defendant bound it to pay any loss " within sixty days after due notice a7id proof thereof; " it was held, in Maine, that the company could not be charged, be- cause at the time of the garnishment it was uncertain and con- tingent whether the company would ever become liable, according to the terms of the policj^ to pay anything.^ 1 Palmer i\ Noyes, 45 New Hamp. 174 ; Sergeant, 350. See Nevins v. Rocking- changing tlie rule previously laid down in ham M. F. I. Co., 5 Foster, 22 ; Knox v. Smith V. B. C. & M. Railroad, 33 New Protection Ins. Co., 9 Conn. 430 ; Girard Hamp. 337, that the garnishee's liability Fire Ins. Co. v. Field, 45 Penn. State, was to be determined by the state of facts 129; 3 Grant, 329; Gove v. Varrell, 58 existing at the time his disclosure was New Hamp. 78. lO'i'le- ^ Swamscot Machine Co. v. Partridge, 2 Branch Bank v. Poe, 1 Alabama, 390. 5 Foster, 3(39. 3 Ante, § 557. 6 Davis v. Davis, 49 Maine, 282. * Franklin F. I. Co. v. West, 8 Watts & [599] § GTO EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. § 670. But while it is true that the garnishee's liability cannot, in the absence of statutory authority, be extended beyond the effects in his hands at the time of the garnishment, it does not necessarily follow that he must be charged to that extent, with- out regard to what may have occurred between the time of the garnishment and that of the judgment against him. There are various modes in which the amount for which he is to be charged may be affected and decided by events occurring after he was garnished. In the language of the Supreme Court of Massachu- setts, " Some liability must exist at the time the process is served in order to charge him, but that liability may be greatly modi- fied, and even discharged by subsequent events. Suppose one indebted to the principal is summoned as trustee, but he has va- rious liens upon the fund, as, for instance, to indemnify himself against suretyships and liabilities for the principal. These liabil- ities may all be discharged, and thus leave the fund subject to the attachment ; or they may be enforced, in whole or in part, and then the trustee will have a clear right to deduct from the fund the amount paid by him, in pursuance of liabihties which existed at the time of the service, and thus the fund may be diminished, or even wholly absorbed. A factor may have a large amount of goods of his principal, on which, however, he has a lien for his general balance. He may have received of his prin- cipal bills of exchange, which have gone forward, but of which the acceptance is uncertain. In this state he is summoned. He will not be chargeable for funds acquired after the service ; but he may receive funds after the service, which will discharge and reverse the balance, and leave the fund liable to the trustee pro- cess ; whereas, but for such acquisition of funds afterwards, the fund attached would be first liable to the factor's balance, which might thus absorb it. There are various modes, therefore, in ivhicli the question, whether trustee or not, and for what amount, may be affected and decided by events occurring after the service of the process." The case to which these views were applied was this : A. sued B. by attachment, and summoned C. as gar- nishee, who w^as at the time indebted to B., but B. was also in- debted to him. After he was garnished, C. sued B. and obtained judgment against him, and when A. obtained a judgment against C. as garnishee, C. paid over only the difference between the amount of his judgment against B. and that of A.'s judgment [GOO] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 671 against him. The court held, that where one is chargeable as a debtor of the defendant, the question will be, whether he holds any balance, upon a liquidation of all demands. In striking such balance he has a right to set off from what he owes the defend- ant, any demand which he might set off in any of the modes allowed either by statute or common law, or in any course of proceeding. And as it appeared that the garnishee was entitled to the set-off in the case in hand, he was discharged. ^ § 671. In Xew Hampshire,^ and Vermont,^ and in Pennsylvania^ since 1836, the garnishee is chargeable not only for the effects in his hands when he was summoned, but also for whatever may come into his hands, or become due from him to the defendant, between the time of the garnishment and that of the answer. In each case, however, this results from peculiar statutory pro- visions. In Maryland, the practice is to condemn all property of the defendant in the hands of the garnishee at the time of trial.^ And in New York, where garnishment, as it elsewhere exists, is not known, but where the service of the attachment upon a party having property of the defendant in his possession is, in effect, an attachment of the property, it was held, as be- tween different attaching creditors, that an attachment served on the 6th of April, upon a factor having in his hands property of the defendant, and also bills of lading of goods consigned to him by the defendant, but not yet received, w^as a continuing attach- ment which was entitled to precedence of one served on the 15th of June after the reception by the factor of the goods specified in the bills of lading.^ 1 Smith I'. Stearns, 19 Pick. 20. See & Sergeant, 350 ; Silverwood v. Bellar, post, §§ 683-688. 8 Wharton, 420 ; Sheetz v. Hobensack, 2 Edgerley i". Sanborn, 6 New Hamp. 20 Penn. State, 412. 397. ^ Glenn i-. Boston & Sandwich Glass 3 Newell V. Ferris, 16 Vermont, 135 ; Co., 7 Maryland, 287. Spring I'. Ayer, 23 Ibid. 516. ^ Patterson r. Perry, 5 Bosworth, 518 ; * Franklin F. I. Co. v. West, 8 Watts 10 Abbott Pract. 82. [601] § 672 a garnishee's eight of defence [chap, xxxvi. CHAPTER XXXVI. THE garnishee's RIGHT OF DEFENCE AGAINST HIS LIABILITY TO THE DEFENDANT. § 672. As the attaching creditor can hold the garnishee only to the extent of the defendant's claim against the garnishee, and can acquire no rights against the latter, except such as the de- fendant had ; and as he is not permitted to place the garnishee in any worse condition than he would be in, if sued by the de- fendant ; it follows necessarily, that whatever defence the gar- nishee could urge against an action by the defendant, for the debt in respect of which he is garnished, he may set up in bar of a judgment against him as garnishee.^ Were it otherwise, an attaching creditor might obtain a recourse against the garnishee, which the defendant could not ; a proposition, the statement of which, except as to cases of fraud, is its own refutation. And while it is not the garnishee's right to assume the attitude of a litigant, as against the plaintiff's right to appropriate the prop- erty or credits in his hands to the satisfaction of the demand against the defendant, it is yet his duty, and one in which he will always be sustained by the court, to see that no judgment is rendered, against him for more than he is legally liable for.^ § 672 a. In law, a judgment in favor of a defendant. in any action is conclusive, as between him and the plaintiff, against his being indebted to the plaintiff on the grounds involved in that action. But when such a defendant is garnished in a suit against that plaintiff, is that judgment conclusive against his liability as garnishee for the same cause of action ? Tlie Supreme Court of Maine held, that this depended upon whether the suit was insti- tuted before or after the garnishment. If before, then the judg- 1 Stroiif^'s Ex'r v. Bass, 35 Peiiri. McDermott i'. Donegan, 44 Ibid. 85; State, 333; Myers v. Baltzell, 37 Ibid. Ellison v. Tuttle, 2G Texas, 283. 491 ; Edson v. Sprout, 33 Vermont, 77 ; 2 Pounds v. llaiuner, 57 Alabama, 342. Firebaugli v. Stone, 3(3 Missouri, HI; [602] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 674 ment is conclusive againt-t the garnishee's liability ; if after, not so : for the attaching plaintiff could not be a party to the suit subsequently brought, and could not employ counsel or summon witnesses therein, or be heard in the final disposition thereof. All this he might do in his own suit ; and the defendant therein, it was held, could not devest him of that existing right by bring- ing a suit against him w^ho had previously been summoned as garnishee.^ Somewhat similar to this case was one in Massachusetts, where the garnishee, when summoned, held certain property which had been put into his hands by the defendant, as security for his lia- bility as surety for the defendant on a bail bond, given in a suit in which the defendant had been arrested. After the garnish- ment the garnishee surrendered the defendant, who thereupon took the poor debtor's oath ; but the creditor insisted that the proceedings were irregular, and brought an action against the garnishee on the bail bond. It was held, that the question of the garnishee's liability on the bail bond might be inquired into and passed upon in the garnishment proceeding, notwithstanding the pendency of the suit against him on the bond.^ § 673. The foundation of all proceedings against garnishees is, that the plaintiff shall have an unsatisfied claim against the de- fendant. Whenever his claim is satisfied, he can no more sub- ject a garnishee to liability, than he can levy on property. It is, therefore, entirely competent for the garnishee, in order to pre- vent a judgment against him, to show that whatever claim the plaintiff may have had against the defendant has been satisfied ; and if necessary, he may file a bill of discovery against the plaintiff to establish the fact.^ § 674. It is an invariable rule, that no understanding or agree- ment entered into between the garnishee and the defendant after the garnishment, can have any effect upon the rights of the at- 1 "Webster v. Adams, 58 Maine, 317. Wallace, -3 Alabama, 1-32 ; Price v. Higr- " Hooton I'. Gamage, 11 Allen, .3.54. gins, I Littell, 274 ; Gleason v. Gage, 2 3 Hinkle r. Currin, 1 Humphreys, 74 ; Allen, 410 ; Riddle v. Etting, 32 Penn. Baldwin v. Morrill, 8 Ibid. 1.32; Spring State, 412; Howard v. Crawford, 21 V. Ayer, 23 Vermont, 510 ; Thompson v. Texas, 399. See ante, % 66.3. [603] § 674 a garnishee's eight of defence [chap, xxxvi. taching creditor, based on the relations existing between the gar- nishee and the defendant when the garnishment took place. ^ § 674 a. It is an equally invariable rule, that no voluntary payment by a garnishee of his debt to the defendant, after the garnishment, and with knowledge on his part of its existence, will prevent his being charged as garnishee. ^ But where, as in some States may be done, the garnishment process is served by leaving a copy at the garnishee's abode, in his absence, if the garnishee, not knowing of that service, pay his debt to the de- fendant, it will discharge his liability.^ And a payment by the garnishee's agent, after the garnishment, but in ignorance of it, will have the same effect ; ^ but not if the agent knew of the garnishment.^ Any payment made by a garnishee to the defendant, after gar- nishment, is voluntary, unless made under the compulsion of judicial order or process. And where such order or process is relied on as authorizing such payment, it is necessary that the jurisdiction and power of the court to make and enforce it should appear ; and, also, that the garnishee could not have avoided compliance therewith. Thus, where A. in Alabama consigned certain iron to B. in New Orleans, who caused the same to be stored; and thereafter B. failed and became insolvent, and a sjmdic was appointed under the laws of Louisiana to receive his assets for the benefit of his creditors ; and the syndic claimed a lien on the iron for the price of the storage thereof; and A. was unable to obtain the iron, except on pa3'raent of the claim for storage, for which a lien on the iron existed ; and on the presen- tation of these facts to a court in New Orleans, an order was made thereby for the payment into court of the amount claimed for storage, subject to such order as the court might make as to the 1 Ellis V. Goodnow, 40 Vermont, 237 ; v. Parker, 2 Hill Ch'y, o5 ; Johaiin v. Leslie v. IMerrill, 58 Alabama, 322. Rufener, 32 Wisconsin, 195 ; jMason v. 2 Locke V. Tippets, 7 Mass. 149; West Crabtree, 71 Alabama, 479. V. Piatt, IIG Ibid. 308; Jolmson v. Carry, » Robinson v. Hall, 3 Metcalf, 301 ; 2 Calif ornia, 33 ; Home Mutual Ins. Co. Tliorno v. Matthews. 5 Gushing, 544; V. Gamble, 14 Missouri, 407 ; Pulliam v. Williams v. Marston, 3 Pick. 65. Aler, 15 Grattan, 54 ; Wilder f. Weather- * Spooner v. Rowland, 4 Allen, 485; bead, 32 Vermont, 7G5 ; Sarcrent »;. Wood, Williams v. Kenney, 98 Mass. 142 ; Jor- 51 Ibid. 597; Cleneay v. Junction R. R. dan v. .Jordan, 75 Maine, 100; Landry v. Co., 26 Indiana, 375 ; Toledo W. & W. Chayret, 58 New Hamp. 80. R. R. Co. V. McNulty, 34 Ibid. 531 ; '" Conley v. Chilcote, 25 Ohio State, Hughes V. Monty, 24 Iowa, 499 ; Parker 320. [604] CHAP. XXXVI.] AGAIXST HIS LIABILITY TO DEFENDANT. § 674 C disposal of said money ; and under that order A. paid the money into that court, after garnishment in a court in Alabama ; it was held, that the payment so made was no defence to A. against liability in Alabama as garnishee of B. ; because, first, it did not appear what, by the law of Louisiana, were the powers and du- ties of the syndic, or of the court which made the order ; sec- ondly, that B., though in possession of the iron, with a lien on it for the storage, could still have maintained indebitatus assumpsit against A. for the storage ; and thirdly, that A. could have forced the surrender of the iron, by suit, without repaying the charges upon it to either B. or the syndic.^ And so, it was held in Alabama, that a payment by a garnishee of his debt to the defendant, under an execution against liim in the defendant's favor, when he could have had the execution stayed, by an appli- cation to the chancellor, until the termination of the garnishment proceeding, and made no such application, was a voluntary pay- ment, which was no defence against his liability as garnishee.^ § G74 i^. The time at which a payment by a garnishee to a de- fendant was made, may become material in reference to his ha- bility under a garnishment made on the same day and about the same time. If the garnishee set up such a payment, it is for him to show that it was made prior to the garnishment, for he is cog- nizant of both facts, and, better than any one else, can show their relative positions. He is not entitled to a presumption in his favor. On the contrary, the presumption will be against him, it he fails to show the true state of the facts. Thus, where the return of the officer showed the garnishment of a corporation at half-past six o'clock in the forenoon, and the garnishee set up a payment made on the same day, without any evidence of the particular time, the garnishment was held to have been prior to the payment.'' § 674 c. If a garnishee assume to determine that the garnish- ment proceeding is defective, and therefore not binding on him, and thereupon pay his debt to the defendant, and his judgment on that point be held erroneous, the payment w411 not prevent 1 Mobile & Ohio R. R. Co. v. Whitney, - Calhoun r. Whittle, 5G Alabama, 138. 39 Alabama, 468. ^ Harris v. Somerset & K. R. R. Co., 47 Maine, 298. [605] § 674 d garnishee's right of defence [chap, xxxvi. his being charged. Thus, one was garnished under a writ against Richard Johnson, whose real name was Richard H. Johnsen. After the garnishment the garnishee paid to the defendant the debt he owed him, and set up that payment in discharge of his liabiUty, because of the misnomer in the writ ; but the defence was overruled, and the garnishee charged.^ The rule applied in that case is not capable of general enforcement. Thus, in Massa- chusetts, a Savings Bank was summoned as garnishee of Sarah Sisson, and answered that there was not any person of that name who was a depositor in the bank or to whom the bank was indebted. To further interrogatories the bank answered that, when it was summoned, a person by the name of Sarali F. Sisson was a depositor in the bank, having a credit of $53.19 ; and that that account was withdrawn by her after the garnishment. The court holding the names to be different ones, discharged the gar- nishee ; and said : " The only writ served upon the trustee was against Sarah Sisson. The trustee, having no funds belonging to any person of that name, and acting, so far as appears in good faith, and with 710 notice or knowledge that the person intended to be sued was Sarah F. Sisson, lawfully paid over to the latter the funds in its hands belonging to her, and cannot by the subsequent amendment of the writ be made liable to pay the same over again to the plaintiff." 2 § 674 d. Every alleged payment must be a payment in fact, not a contrivance intended to be a payment or not, as circumstances might subsequently require. Therefore, where a person, being told that he was going to be summoned as garnishee of another, gave the other a check on a bank, and was afterwards garnished ; and stated in his answer that he did not know that the check had ever been presented to the bank, and that, by an understanding between him and the defendant, it was placed in the hands of a clerk in the garnishee's store ; it was held, that the garnishee might at pleasure revoke the check, and that the giving of it was no payment ; and he was charged.^ 1 Paul V. Jolinson, 9 Pliiladelpliin, 32. dant was employed by the town ; that on 2 Terry v. Sisson, 125 Mass 560. a certain day a settlement of acconnts 3 Dennie v. Hart, 2 Pick. 204. In Bar- was had between A. and the town, when Hard v. Graves, 16 Pick. 41, the town of the selectmen p;ave him a check on a Worcester was summoned as garnishee bank for 8210 ; tliat there being, however, of A., and answered, showing that defen- a debt due from him to the town, tiie [006] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 675 § G74 e. If the garnishee's liability to the defendant be one in which another is jointly bound with him, and his co-obligor, not being garnished, pay the debt, such payment is a discharge of the garnishee.^ § 67-4/. If a garnishee be discharged, and before the plaintiff sues out a writ of error to the judgment discharging him, he pay his debt to the defendant, on a judgment which the latter had recovered against him, it will discharge his liability, tliough the judgment discharging him be afterwards reversed.^ But where the attachment plaintiff, at the time the order of discharge was made, prayed an appeal therefrom, and witliin a few hours per- fected the appeal, and caused official notice of the fact to be given to the garnishee ; it was held, that a payment made by the garnishee of his debt to the defendant, in the interval be- tween the discharge and the perfecting of the appeal, and with- out actual notice of the plaintiff's intention to appeal, did not discharge the garnishee from the attachment. Tlie court' said: " For all the purposes of the garnishment, the garnishee was a party to the action, and was bound to take notice of all that was done in court in relation to the attached fund, or in any way affecting him as garnishee, and must therefore be taken to have had constructive notice that an appeal had been prayed and granted." ^ § 675. While a voluntary payment, after garnishment, will not discharge the garnishee's liability, a payment under a previous amount of which was not tlien asccr- but the court said : " In the case of tained, it was agreed that the amount of Dennie i'. Hart, the court considered the the debt, when ascertained, shoukl be de- transaction merely colorable ; that the ducted from tlie sum to be obtained by depositary of the check was the agent of the check ; tliat this debt was afterwards the trustee himself ; and tliat the trustee found to amount to SG7.58 : that the de- had the control of it, and might revoke it fendant being also indebted to one B. in when lie pleased ; and the decision went the sum of $19.77, it was further agreed on tliat ground. In the present case, we by the selectmen and the defendant, that tiiink the depositary was not the agent the check sl\ould be placed in B.'s hands, of the town, but of A., to receive and and the amount thereof paid to him by appropriate the amount of the check, and the bank, In order tliat he might retain that the town could not control or revoke the sums due from the defendant to the it. The check, therefore, was a payment town and to himself ; and the check was of the debt due from the town to A." accordingly received by B., and was in See Getchell v. Chase, 124 Mass. ;J()6. his hands at the time of the garnishment. ^ Jewett v. Bacon, 6 Mass. 60 ; Nash v. The above case of Dennie v. Hart was re- Bropliy, 13 Metcalf, 476. lied on as estabUsliing tliat the giving of - Wel)b v. Miller, 24 Mississippi, 6-38. the check was no payment by the town : ' Putfr. Huchter, 78 Kentucky, 146. [607] § 676 garnishee's eight of defence [chap, xxxvi. garnishment will have all the force and effect of a payment prior to the institution of the suit in which it is sought to charge him ; for the operation of the previous garnishment began at the time it was made, and the subsequent payment was only the consum- mation of a right existing at the time of the second garnishment.^ Thus, where one was summoned as garnishee in New Hamp- shire, and afterwards, on the same day, was summoned in Mass- achusetts ; it was held, that the court in the former State had first acquired jurisdiction of the fund, and having, after a full disclosure by the garnit^hee of the facts relating to the suit in the latter State, rendered judgment and execution against him, which he had paid, that payment discharged his liability to the Massa- chusetts court.2 And where an incorporated company, owner of a coasting vessel, was summoned in Massachusetts as garnishee of one of the seamen of the vessel ; and the seaman afterivards brought suit in a court of admiralty in New York for the wages due him ; in which suit the company appeared, and set up in defence that it had been garnished in Massachusetts; and the admiralty court held that the seaman's wages were not attach- able, but were exempt from attachment ; and rendered judgment against the owner, for all wages due him ; from which judgment no appeal could be taken ; and the owner paid the amount of it ; it was held by the Supreme Court of Massachusetts, that this payment discharged the owner from the attachment proceeding iu that State.3 But a payment made by a garnishee under an execution against him as such, will not avail, where, before pay- ment, the debt he owed the defendant was set apart to the defendant as a portion of his legal exemption of personalty, and the garnishee was notified thereof before he made the payment.* § 676. Though a garnishee make payment after his garnish- ment, on execution obtained against him by the defendant, yet if such execution was irregular, and might have been set aside on his motion, it is held, in Missouri, to be no protection against the garnishment.^ 1 New Orleans M. & C. R. R. Co. v. * Watkins v. Cason, 4G Georgia, 444. Long, 50 Alabama, 408. ^ Home JMiitual Ins. Co. v. Gamble, '^ Garity v. Gigie, 130 Mass. 184. 14 Missouri, 407. 3 Eddy V. O'Hara, 132 Mass. 56. [008] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 680 § 676 a. If a garnishee, under order of the court, pay the money in his hands to the sheriff, to be held by him pending the litigation, he will be thereby protected against both the plaintiff and defendant in the attachment, because both are bound by the order.^ § 677. If one indebted pay his debt to a creditor of his creditor, without any authority from his creditor, and be afterwards gar- nished in a suit against the latter, this unauthorized payment will not avail him as a defence ; and a ratification of it by the defendant after the garnishment will be ineffectual, because the jus disponendi in the defendant is taken away by the attach- raent.2 § 678. If the debt of the garnishee to the defendant is barred by the statute of limitations, he may take advantage of the stat- ute, just as he could if sued by the defendant.^ § 679. If the consideration of the garnishee's debt to the defendant has failed, the garnishee may take advantage of it. Thus, where the garnishee had purchased a tract %i land from the defendant, the last payment for which was due, but after the note therefor was given, the garnishee discovered that there was a judgment against the defendant which bound the land, and which he was compelled to satisfy, and the amount was greater than that of the note ; it was held that he could not be charged.^ § 680. If a debtor, by the default of his creditor, be discharged from his contract, he cannot, in respect of that contract, be charged as garnishee of his creditor. Thus, where A. gave his note to B. for five tons of hay, deliverable in July, 1808, on A.'s farm, and B. was not there then to receive it ; it was held, that 1 Rochereau v. Guidry, 24 Louisiana Emerson, 9 Pick. 144 ; James v. Fellowes, Annual, 294. See Ohio & M. R. W. Co. 20 Louisiana Annual, 116. V. Alvey, 4.3 Indiana, 180. 4 Sheldon v. Simonds, "Wright, 724. 2 Sturtevant v. Robinson, 18 Pick. 175. See Mathis v. Clark, 2 Mills' Const. Ct. 3 Ilinkle v. Currin, 2 Humphreys, 137 ; 456 ; Russell v. Hinton, 1 Murphey, 468 ; Benton v. Lindell, 10 Missouri, 557; Gee Moser v. Maberry, 7 Watts, 12 ; Ball v. V. Cumniing, 2 Haywood (N. C), 398; Citizens' Nat. Bk., 39 Indiana, 364; Gee V. Warwick, Ibid. 354; Hazen v. Mowry v. Davenport, 6 Lea, 80. 39 • [609] § 682 a garnishee's eight of defence [chap, xxxvi. B. had no cause of action against A., and that A., therefore, could not be held as his garnishee.^ § 681. Where, as in Virginia, a proceeding by foreign attach- ment in chancery is allowed, the garnishee may set up any equi- table defence, which shows that in equity he owes no debt to the defendant.^ It was, therefore, held in that State, in such a proceeding, that a garnishee with whom a horse was left by the defendant for keeping, was entitled, as against the attaching creditor, to have his claim for the keeping first satisfied out of the property.^ § 682. But any defence which the garnishee seeks to interpose against his liability must be such as would avail him in an action by the defendant against him.* Extraneous matters having no relation to the question of his indebtedness to the defendant cannot be set up by him. It was, therefore, held, that he could not defeat the garnishment by showing that the judgment under which he was garnished did not belong to the plaintiff.^ And so, a garnishee cannot retain from the effects in his hands anything to meet a ccfctingent liability which he is under for the defend- ant. Thus, where the garnishee had held notes of the defendant for a debt, and caused them to be discounted by, and indorsed them to, a bank, and tliey were not yet due when the garnish- ment took place ; it was held, that the garnishee had no claim against the defendant, and that his contingent liability as indorser of the notes was no defence to his being charged as garnishee ; and the court refused to continue the cause until the maturity of the notes, in order to see whether they would be paid.^ § 682 a. When, however, tlie garnishee sets up a defence against his liability to the defendant, it must not be such as would operate as a fraud upon the defendant's creditors. Thus, where an attorney-at-law was garnished, who had received from the defendant money, as security for several purposes ; one of which was to secure such fees as might be due the attorney, in any business of the defendant which the attorney might have in 1 Jewett V. Bacon, 6 Mass. GO. 6 Jackson v. Shipman, 28 Alabama, 488. 2 Glassell v. Thomas, 3 Leigli, 113. 6 Smith v. B., C, & M. Railroad, 33 8 Williamson v. Gayle, 7 Grattan, 152. New Hanip. 337. * Jones V. Tracy, 75 I'cnn. State, 417. [610] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFEXDAXT. § 683 hand for him, " either now or hereafter ; " the court, while sus- taining the garnishee's right to retain enough of the money to pay any fees due or to become due in any business in which he had been retained by the defendant before the garnishment ; yet denied that right as to any business in which the retainer was subsequent to the garnishment, or as to business which arose afterward, in which the garnishee claimed fees merely by virtue of a prior general retainer. " It would," said the court, " be a fraud upon creditors to permit a debtor to place his property beyond their reach, by depositing it with an attorney, to be held nominally for future services to be rendered in whatever litigation the debtor might be engaged." ^ § 682 b. If a garnishee admit facts showing some liability, but rely on other facts as a defence against a recovery by the plain- tiff, he cannot on the trial set up another and repugnant defence. His allegata and probata must agree.^ § 682 c. The garnishee cannot escape liability, by showing that the defendant's money in his hands had been received b}^ him through a transaction in violation of law. Thus, where the money in the garnishee's hands had been received from the sale of intoxicating liquors, made by him as agent of the defendant, which sale was unlawful ; it was held, that this constituted no defence against the garnishee's liability .^ § 683. The particular defence which has given rise to the greatest amount of adjudication, is set-off ; concerning which the rule is well established, that the rights of the garnishee shall not be disturbed by the garnishment. Whatever claim, therefore, he has against the defendant, and of which he could avail himself by set-off in an action between them, will be equally available to him in the same way, in the garnishment proceeding.* And 1 Grain v. Gould, 46 Illinois, 293. 27 Illinois, 352; Sampson v. Hyde, 16 ^ First Baptist Church i\ Hyde, 40 lUi- New Harap. 492 ; Brown v. Warren, 43 nois, 150. Ibid. 430 ; Strong's E.x'r r. Bass, 35 3 Thayer y. Partridge, 47 Vermont, 42-3. Penn. State, 333; Nesbitt v. Campbell, * Picquet v. Swan, 4 Mason, 443 ; 5 Nebraska, 429. In New Hampshire Ashby V. Watson, 9 Missouri, 236 ; Beach the rule on this subject was thus stated : r. Viles, 2 Peters, 675 ; Mattingly v. " The principle is well settled, that the Boyd, 20 Howard Sup. Ct. 128 ; Arledge trustee may retain in his hands, of the V. White, 1 Head, 241 ; Rankin v. Simonds, funds of the debtor, an amount equal to [611J § 684 garnishee's right of defence [chap, xxxvi. though the set-off consist of moneys paid by the garnishee, on his verbal assumpsit of debts of the defendant, which he might have avoided by pleading the statute of frauds, the plaintiff cannot object to it ; for that plea is a personal privilege which may be waived, and having been waived by the garnishee, his payment cannot be assailed on that ground.^ § 684. The claim which the garnishee seeks lo set off against his indebtedness to the defendant must, however, be due in the same right as his indebtedness. Therefore, a garnishee answering that he is indebted to the defendant, cannot set off a claim he has, as administrator of another person, against the defendant.^ So, if he be indebted individually to the defendant, he cannot set off a debt due from the defendant to him and another jointly .^ So, where several garnishees were indebted, as copartners to the defendant, who was indebted to them individually as legatees, it was held, that the two debts could not be set off against each other.* But where a copartnership was indebted to the defend- ant, and a part only of the members of the firm were garnished, it was held, in Massachusetts, that those who were summoned should be allowed the benefit of such set-offs as they, and their copartners, not summoned, were entitled to against the defend- ant.^ And where A. had in his hands a fund, out of which he and B. & C. were entitled to a certain amount, and the remainder was to go to D., and A. was summoned as garnishee of D. ; it was held, that he might retain not only what was due to himself, but what was due to B. & C.^ And where two persons were summoned as garnishees, who were indebted to the defendant jointly, it was held, that they might set off against their debt to all sums of which said trustee might ^ McCoy v. "Williams, 6 Illinois (1 Gil- legally or equitably avail himself by way man), 584. of set-off, by any of the modes allowed ^ Thomas v. Hopper, 5 Alabama, 442 ; eitlier by the common or statute law, if Woodward v. Tupper, 58 New Hamp. the action were brought by the defend- 577. ant liimself against the trustee. One of ^ Gray v. Badgett, 5 Arkansas, 16. the common and material elementary * Blanchard v. Cole, 8 Louisiana, 160 ; principles applicable to the doctrine of Wells v. Mace, 17 Vermont, 503. See set-off, is, that the claims between the Norcross v. Benton, 38 Penn. State, 217. parties should be mutual in their cliar- ^ Hathaway r. Russell, 16 Mass. 473. acter, and should exist at the time of the ^ Manufacturers' Bank v. Osgood, 12 commencement of the suit." Wlieeler v. . Maine, 117. Emerson, 45 New Ilamp. 526. [612] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 685 him, not only a claim which they jointly had against him, but the several claim of each of them.^ § 684 a. The claim upon which the garnishee relies as a set-off, must be one arising ex contractu. Therefore, where a town was garnished, and attempted to set off a tax due to it from the defendant against its indebtedness to him, the right was denied, upon the ground that the tax was in no sense a contract, express or implied.^ So, where a garnishee sought to deduct from his debt to the defendant certain moneys which he had previously paid the defendant for intoxicating liquors sold by the defendant to him, in violation of law, and which he was authorized by statute to recover back " in an appropriate action ; " it was held, that where a statute confers a remedy unknown to the conimon law, and prescribes a mode of enforcing it, that mode alone can be resorted to ; that the right of the garnishee to reclaim the money he had illegally paid the defendant was not founded upon a contract, but arose solely from the violation of law ; that it was given to the purchaser alone, to be enforced at his option, and could be enforced by him only in the specific mode pointed out in the statute itself ; and that he could not enforce it by way of deduction from his debt to the defendant.^ § 685. Whether the garnishee's right of set-off will be restricted to debts actually due and payable from the defendant to him at the date of the garnishment, has been differently decided. In Massachusetts, New Hampshire, Vermont, and Maryland, the rule is, that if the defendant before final answer becomes indebted to the garnishee, on any contract entered into before the garnish- ment, the garnishee's right of set-off exists.* Thus, where the garnishee, when summoned, was indebted to the defendant, but was, at the same time, liable as accommodation indorser of a note 1 Brown v. Warren, 43 New Hamp. * Boston Type Co. v. Mortimer, 7 430. Pick. 16G ; Allen i'. Hall, 5 Metcalf, 263 ; 2 Johnson v. Howard, 41 Vermont, Swamscot Machine Co. ;;. Partriilge, 5 122 ; Hibbard v. Clark, 56 New Hamp. Foster, 369 ; Boardman v. Gushing, 12 155. See Shaw v. Peckett, 26 Vermont, New Hamp. 105 ; Boston & Maine Rail- 482 ; Camden v. Allen, 2 Dutcher, 398 ; road v. Oliver, 32 Ibid. 172 ; Strong v. Pierce v. Boston, 3 Metcalf, 520 ; Perry Mitchell, 19 Vermont, 644; Smith v. r. Washburn, 20 California, 318; Mayhew Stearns, 19 Pick. 20; Farmers & Mer- V. Davis, 4 McLean, 213. chants' Bank v. Franklin Bank, 31 Mary- 3 Thayer v. Partridge, 47 Vermont, 423. land, 404. [613] § 686 garnishee's right of defence [chap, xxxvi. of the defendant for a larger amount, which became due after the garnishment, and was protested for non-payment, and the garnishee paid it before he made his answer ; the court held, that he could set off the amount of the note against his debt to the defendant ; and in giving their decision, observed : " Under these circumstances, we think he cannot be held as trustee ; for it would be against justice that he should be held to pay a creditor of his debtor the only money by which he can partially indemnify himself. This question has not before arisen, but we think it quite consistent with the object and views of the legislature, and with the general tenor of the statute, that if before final answer the debtor becomes indebted to the respondent on any contract entered into before the service of the writ, the latter shall have a right of set-off, and be chargeable only with the final balance, if one should be due. This decision will not reach the case of a liability incurred after the service of a writ, or where the effect of such liability may be avoided by reasonable diligence on the part of the person liable, to procure the payment of the debt by the principal ; nor where it is contingent whether the liability will ever be enforced or not ; but we confine it to such a case as we have before us, in which there was an actual liability before the service of the writ, and an actual payment, by necessity, before the answer." ^ § 686. On the other hand, it has been decided in Delaware, that the garnishee cannot set off a note of the defendant which was not due at the time of the garnishment.^ And where, before the garnishment, a judgment had been obtained against the gar- nishee, as security of the defendant, it was held, in Arkansas, to be no defence against the garnishee's liability ,3 even though after the garnishment he satisfied the judgment.^ In Maine, the debt due the garnishee, and which he seeks to set off against his lia- bility to the defendant, must have been a debt due at the time of the "garnishment.^ And so in Connecticut ^ and Alabama.^ In the Circuit Court of the United States for the Third Circuit, the following case occurred : A. was summoned on the 14th of Sep- 1 Boston Type Co. v. Mortimer, 7 Pick. * Watkins v. Field, 6 Arkansas, 391. IQQ 5 ingalis V. Dennett, Maine, 79. 2 Edwards v. Delaplaine, 2 Harrington, ^ Parsons v Root, 41 Conn. IGl. 322. 7 Self V. Kirkland, 24 Alabama, 275. 8 Field r. "Watkins, 5 Arkansas, G72. [614] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § G86 tember, as garnishee of B., and in his answer admitted having received, on the 19th of September, fifty crates of earthenware belonging to the defendant, which on being sold netted 8900 : but stated that he was indorser on bills accepted by B., which had been protested before the garnishment, and after the gar- nishment were paid by him. This case, it will be perceived, differs from that in Massachusetts, just cited, in the important point of the garnishee's liability as indorser having been fixed before the garnishment, though, as in that case, the payment was made afterward. Washington, J., charged the jury : " This is a hard case upon the garnishee, who, at the time this attachment was levied, was liable to pay these bills, as indorser, to a much greater amount than the value of the funds of the defendant in his hands, and if he had then paid them he most undoubtedly would not have had in his hands any effects of the defendant, as he could not have been liable for more than the balance of account between him and the defendant. But, until he paid them, he was not a creditor of the defendant, and of course the attachment bound the effects of the defendant in his hands, at the time it was laid, which could not be affected by subsequent credits to which he might be entitled. The law of this State is too strong to be resisted. It not only declares, that the goods and effects of the absent debtor in the hands of the garnishee shall be bound by the attachment, but that the garnishee shall plead that he had no goods and effects of the debtor in his hands when the attach- ment was levied, nor at any time since ; on which the plaintiff is to take issue, and the jury are to find the fact put in issue, one way or the other. Now, until these bills were paid by the gar- nishee, he had no claim against the defendant ; and on the 19th of September, he had goods of the defendant in his hands, which must decide the issue in favor of the plaintiff. The case must be decided precisely in the same manner as if this cause had come on before those bills were paid by the garnishee. Your verdict, therefore, must be for the plaintiff, to the amount of the effects acknowledged by the garnishee to have been in his hands, independent of those bills." ^ The Supreme Court of Pennsylvania held the same general doctrine, and said : " A cross demand against the defendant in an attachment may be set off by the garnishee, as it may by a defend- 1 Taylor v. Gardner, 2 Washington C. C. 488. [615] § 688 a garnishee's eight of defence [chap, xxxvi. ant in any other suit, but subject to the same rules and restric- tions ; and a defendant may not set off a demand acquired after the action was instituted. Nor may a plaintiff give evidence of a cause of action incomplete at the impetration of the writ. But set-off is in substance a cross-action ; and a cross demand also must have been complete when the action was instituted. In this respect the parties stand on equal ground. Neitlier is allowed to get the ivliip hand and souse the other in costs, hy starting before he loas readijT ^ § 687. It may not unfrequently become a question, whether the set-off claimed by the garnishee was acquired before or after the garnishment. In such case there is no presumption ; but the garnishee, alleging the existence of the set-off before the garnish- ment, must support liis allegation with proof. ^ If the set-off was acquired by the garnishee after the garnishment, it cannot avail him as against his liability to the defendant.^ § 688. In regard to set-offs the Supreme Court of Massachusetts has always entertained an expansive and equitable view of the rights of garnishees. There, as we have seen,^ if the defendant before final answer becomes indebted to the garnishee, on any contract entered into before the garnishment, the garnishee's right of set-off exists. It is also held to be clearly the construc- tion of the trustee process in that State, that where one is charge- able in consequence of being the debtor of the defendant, the question will be, whether he holds any balance xq^on a liquidation of all demands. In striking such balance he has a right to set off, from the debt which he acknowledges he owes the principal, any demand which he might set off in any of the modes allowed either by statute or common law, or in any course of proceeding.^ § 688 a. While the garnishee's right of set-off is ordinarily unquestionable, he may sustain such a relation to the defendant, 1 Pennell v. Grubb, 13 Peiin. State, 552. < Ante, § G85. 2 Pennell v. Grubb, 13 Pcnn. State, 552. 5 Smith v. Stearns, 19 Pick. 20. See 8 Dyer v. McHcnry. 13 Iowa, 527 ; Hathaway v. Russell, 16 Mass. 473; Grain v. Gould, 46 Illinois, 293 ; Wheeler Green v. Nelson. 12 Metcalf, 567 ; Nicker- V. Emerson, 45 New Ilamp. 52G; Farmers' son v. Chase, 122 Mass. 296. Bank r. Gcttineer. 4 West Virginia, 305; Seamon v. Bank, Ibid. 339. [616] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 689 a and to the moneys of the defendant in his hands, as to deprive him of that right. Thus, where a president of a corporation was also a banker, and became the depositary of the corporation's money, while he held a large amount of its over-due bonds ; and, to avoid being charged as its garnishee, he attempted to set off some of those bonds against his liability as depositary ; it was held, that "it would be a breach of the confidence reposed in him as depositary, as president, and as co-corporator, for him to take such an advantage of his position ; " and he was charged as garnishee.^ § 689. In Vermont,^ and in Alabama, it has been held that a garnishee cannot avail himself of an equitable claim agahist the defendant by way of set-off. Therefore, where the garnishee had in his hands a sum of money belonging to the defendant, being a balance of the proceeds of property conveyed to him in trust to secure a debt due to him, but insisted upon his right to appropriate that balance to the payment of a note made by the defendant to S. & Co., and by S. & Co. transferred to the gar- nishee, but without indorsement, whereby only the equitable title to the note was vested in the garnishee, while the legal title still remained in S. & Co. ; it was held by the Supreme Court of Ala- bama, that the garnishee having only an equity, could not avail himself of it as a set-off.^ § 689 a. The right of the garnishee to deduct from his liability to the defendant, is not confined to matters which come under the technical designation of set-off. Any damages which he may show himself entitled to recover of the defendant, and which arise out of the same transaction or contract in respect to which the plain- tiff seeks to make the garnishee liable, may be so deducted. The garnishment cannot deprive him of the benefit of recoupment, or any like defence."* And this was so held, notwithstanding the existence of a statute which excepted from the privilege of de- duction by a garnishee, by way of set-off, claims which he had for "unliquidated damages for wrongs or injuries." This was 1 Fox V. Reed, 3 Grant, 81. 552 ; Faxon v. Mansfield, 2 [Nlass. 147 ; 2 Weller v. Weller, 18 Vermont, 55. Doyle v. Gray, 110 Ibid. 20G ; Hitchcock 3 Loftin V. Shackleford, 17 Alabama, v. Lancto, 127 Ibid. 514; Rankin v. 455 ; Self v. Kirkland, 24 Ibid. 275. Simonds, 27 Illinois, 352 ; Gage v. Chese- * Powell V. Sammons, 31 Alabama, bro, 49 Wisconsin, 486. [617] § 690 GAENISHEE's eight of defence, etc. [chap. XXXVI. considered to refer to independent claims, and not to such as arise out of the contract under which the garnishee is liable to the defendant.^ So, where A. agreed to do certain work for B. for a stipulated compensation, and B. furnished to A. materials to be used in the work ; and B. was summoned as garnishee of A. ; and it appeared that A., without B.'s knowledge or consent, had appropriated to his own use part of the materials so furnished, and had credited B. on his books with the value thereof; and B., on hearing of it, did not disavow the transaction ; it was held, that A.'s act might be considered as ratified by B., so as to enti- tle him to set off the value of the materials against his debt to A} So, where A. agreed to build a house for B., and in the contract stipulated to pay B. a certain penalty for every day that the completion of the house should be delayed beyond a day named ; and before the house was completed he abandoned the work ; and after its abandonment B. was summoned as garnishee of A., and in his answer admitted indebtedness to A., when the work was abandoned, but claimed to recoup against it the pen- alty stipulated for in the contract ; the right to such recoupment was sustained.^ § 690. We have considered only those cases in which the gar- nishee is indebted to the defendant. His position is different where it is sought to charge him in respect of property of the defendant in his hands. There his right of set-off will depend on the fact whether he has any lien, legal or equitable, upon the property, or any right as against the defendant, by contract, by custom, or otherwise, to hold the property, or to retain posses- sion of it in security of some debt or claim of his own. If he has a mere naked possession of the property without any special property or lien ; if the defendant is the owner, and has the pres- ent right of possession, so that he might lawfully take it out of the custody of the garnishee, or authorize another to do so ; then the property is bound by the attachment in the hands of the garnishee, and he has no greater right to charge it with a debt of his own by way of set-off, than he would have had if the goods had been taken into custody by the officer, at the time of the attachment.^ 1 Cota V. Misliow, 02 Maine, 124. » Thompson v. Allison, 28 Louisiana 2 Brown r. Brown, 55 New Ilamp. 74. Annual, Too. 4 Allen V. Hall, 5 Metcalf. 263. [618] CHAP. XXXVII.] GAEXISHEE'S RELATION, ETC. § 692 CHAPTER XXXVII. THE GARXISHEE'S RELATION TO THE MAIN ACTION. § 691. When one is, by garnishment, involuntarily made a party to a suit in which he has no personal interest, he should be in law fully protected by the proceedings against him. As has been often remarked, a garnishee is a mere stake-holder between the plaintiff and the defendant, having in his hands that which the law may take to pay the defendant's debt, in the event of a recovery by the plaintiff, or which he may, if no such recovery be had, be required to pay or deliver to the defendant. He stands in a position in which he cannot act voluntarily, without danger to his own interests.^ If he voluntarily pay his debt to the defendant, after the garnishment, we have seen that such a payment will not protect him against a judgment in the attach- ment suit.2 So, on the other hand, a voluntary payment to the plaintiff will not devest the defendant's right of action against him. Any payment he may make to the plaintiff, without the authority or consent of the defendant, will be regarded in law as voluntary, unless made under legal compulsion, in the manner prescribed by law. Hence there is a necessity, as well as great propriety, that the garnishee should be enabled to ascertain whether the proceeding against him, if carried to fruition, will constitute a protection to him against a second payment to the defendant.^ This it w-ill not do, if from any cause the judgment against the defendant be void.^ The principles, therefore, con- nected with the garnishee's relation to the main action, will now receive attention. § 692. This subject presents itself primarily in two distinct aspects : 1. Where the defendant is personally served with pro- 1 Ante, § 451 b. * Post, § 696 ; Haynes v. Gates, 2 2 Ante, § 674 a. Head, 598. 8 Douglas V. Neil, 37 Texas, 528. [619] § 693 gaenishee's relation, etc. [chap, xxxvn. cess ; and 2. Where the proceeding is ex parte, without any ser- vice of process on, or appearance by, the defendant, and where jurisdiction is acquired over him through an attachment of his property. In the first case, the jurisdiction obtains through the service of the process on the defendant : the attachment is not the founda- tion of the jurisdiction, but a provisional remedy allowed to the plaintiff for the purpose of securing his demand. In the second case, the attachment is the basis of the jurisdic- tion. If it be issued without legal authority, any proceedings under it are coram nonjudice and void. In the former case, though the attachment were illegally issued, yet it is the privilege of the defendant alone to take ad- vantage of it, and if he waive the illegality, and the effects in the garnishee's hands are subjected to the payment of his debt, the defendant is concluded by the judgment of the court, and cannot afterwards question its sufficiencj^ to protect the gar- nishee.^ Where, however, the defendant is not personally a party to the proceeding, it is different. In such case he has a right after- wards to know that his property has been taken conformably to law ; and if it be not so taken, his interest in it is not devested. If taken by a court of competent jurisdiction, upon a legal case presented for the exercise of its jurisdiction, though the pro- ceedings be irregular, and therefore voidable, they will be conclu- sive upon him until reversed, and any rights of property acquired through them will be sustained. But if the court have no juris- diction of the subject-matter, or if jurisdiction be exercised with- out any legal foundation being laid for it, the whole proceeding is void, and the defendant's property is not alienated through it. His rights exist, to every intent, as if the proceeding had never taken place.^ § 693. From these general propositions the following conclu- sions are drawn: 1. Where the defendant is personally before the court, the garnishee is not interested either in the juris- dictional legality of the proceedings, or in their practical regu- l Featherston v. Compton, 3 Louisiana & C. R. R. Co. v. Taylor, 81 Indiana, Annual, 380; Wasliburn v. N. Y. & V. 24. M. Co., 41 Vermont, 50 ; Baltimore, O., ^ Ante, §§ 87 a, 87 6, 87 c, 88. [620] CHAP. XXXVII.] garnishee's RELATION, ETC. § 695 larity as against the defendant; and 2. Where the defendant is not personally before the court, the garnishee is concerned only in the question of jurisdiction ; for if that has attached, and the judgment of the court will be conclusive as to the rights of prop- erty acquired through the attachment, he will be fully protected by a payment made by him while the proceedings stand in force. § 694. But though, where the defendant is before the court in person, the garnishee is not concerned in the question of juris- diction over him, yet he is directly interested in the question of jurisdiction over himself. The court may have power to hear and determine the main action, but none over the garnishee ; in which case if the garnishee submit to the jurisdiction, and make pay- ment under it, it will avail him nothing. Thus, if the law, as in Massachusetts, declare that no person shall be garnished in an action of replevin, or in an action on the case for malicious prose- cution, or for slander, or in an action of trespass for assault and battery, and yet a garnishee be summoned in such an action, if he submit to the jurisdiction, it will be in his own wrong. But if the garnishee raise the question of jurisdiction, and it is decided against him, and the court proceeds to assert its jurisdic- tion by rendering judgment against him, a compulsory payment under that judgment will protect him against a subsequent action by the attachment defendant.^ § 695. It follows hence, that a garnishee must, for his own protection, inquire, first, whether the court has jurisdiction of the defendant, and next, whether it has jurisdiction of himself. If the jurisdiction exists as to both, he has no concern as to the eventual protection which the judgment of the court will afford him ; it will be complete. If the court has jurisdiction of the defendant, and the gar- nishee wishes to question its right to proceed against himself, he must do so in limine; if he answer, and judgment be rendered against him, and he remove the case by certiorari to a higher court, it was held in Alabama, that he cannot in that court object to the steps taken in the inferior court to charge him as garnishee.^ And. so, if he appear to the action, and submit to a 1 Wyatt's Adm'r i-. Rambo, 29 Ala- 2 Gould v. Meyer, 36 Alabama, 505. bama, 510; Gunn v. Howell, 35 Ibid. 144. See National Bank v. Titsworth, 73 Illi- nois, 591. [621] § 695 garnishee's relation, etc. [chap, xxxvii. rule to answer, and, by agreement entered of record, consent to a continuance of the cause, it is then too late for him to object to the process or its service.^ § 696. Such are the principles which are considered to govern this subject. We will briefly present their operation, as exhibited in the reported cases. In Mississippi, the statute declared that " every attachment issued without bond and affidavit taken and returned, is illegal and void, and shall be dismissed." There, it was held, upon writ of error sued out by a garnishee, not only that a judgment against a garnishee, where such bond and affi- davit had not been taken and returned, was erroneous, because the proceedings were illegal and void ;2 but that such a judg- ment was no bar to a subsequent action by the defendant against the garnishee.^ In Indiana, a judgment rendered by a justice of the peace against an executor, as garnishee, was decided to be no protection to him because the statute prohibited a justice of the peace from exercising jurisdiction in any action against an executor.4 i^^ Alabama, on error by the garnishee, a judgment against him was reversed, because the officer who issued the at- tachment had no jurisdictional right to issue it, and the attach- ment was therefore void.^ In Tennessee, it was decided that a garnishee might plead in abatement that neither the plaintiff nor the defendant was a citizen of that State, in which state of case the court had no jurisdiction.^ In Louisiana, it was held, that a garnishee might plead that the law under which the proceeding against the defendant was conducted had been repealed, and therefore that the court was without jurisdiction.^ In Kentucky, a judgment against a garnishee in an attachment proceeding, instituted contrary to law, in a county not the defendant's residence, and in which he had not resided, was no pratection to the garnishee.^ In Missouri, it was held, in a garnishment pro- ceeding under execution, that the garnishee might resist his ha- bility on the ground that the judgment on which the execution 1 Baltimore, 0., & C. R. R. Co. v. Tay- * Harmon v. Birchard, 8 Blackford, 418. lor, 81 Indiana, 24. ^ I^ew v. Bank of Alabama, 9 Alabama, - Oldbam i'. Ledbetter, 1 Howard 323. (Mi.), 43; Berry u. Anderson, 2 Ibid. 6 Webb v. Lea, 6 Yerger, 473. 64'J ; Ford v. Woodward, 2 Smedes & "> Featberston v: Compton, 8 Louisiana Marsball, 260. Annual, 285. 3 Ford V. Hard, 4 Smedes & Marshall, « Robertson v. Roberts, 1 A. K. Mar- 683. shall, 247. [622] CHAP. XXXVII.] garnishee's RELATION, ETC. § 697 was issued was voicl.i In Vermont, it was held, that where there was no service of process upon the defendant (without which there could be no judgment lawfully rendered against him), the garnishee was entitled to move for the dismissal of the whole pro- ceeding.'-^ In Ohio, where the statute provides that an attachment shall not be granted on the ground of the non-residence of the defendant, " for any claim other than a debt or demand arising upon contract, judgment, or decree ; " in a suit based solely on a breach of duty, without averring that the duty arose by contract, it was held, that no jurisdiction of the non-resident defendants was acquired ; that a garnishee therein was not bound to answer ; and that no action could be maintained (under the law of that State authorizing such a proceeding) against the garnishee for refusing to answer.^ The obvious principle upon which these and all similar cases stand is, that, as a judgment against a garnishee must be founded upon a valid judgment against the defendant, there can be no such foundation where the judgment against the defendant is unauthorized and void.* In Maryland, it is the right of the garnishee, not only to con- test, at any stage of the proceeding, the jurisdiction of the court over the defendant, because of the insufficiency of the affidavit,^ but to dispute the truth of the ground upon which the attach- ment issued,^ and even to take advantage of irregularities in the proceedings against the defendant.'^ § 697. When, however, the jurisdiction of the court over both the defendant and the garnishee has attached, the right of the latter to inquire into or interfere with the proceedings in the main action is at an end ; for all that he is interested in is, that the proceedings against himself shall protect him against a second payment. That they will do so, though there be in them errors 1 Smith V. ]\IcCutchen, 38 Missouri, joy v. Albree, 33 Maine, 414 ; Edrington 415. V. Allsbrooks, 21 Te.xas, 186 ; Greene v. 2 Wasliburn v. N. Y. & V. M. Co., 41 Tripp, 11 Rliode Island, 424; Matheney Vermont, 50. v. Earl, 75 Indiana, 531. 3 Pope V. Hibernia Ins. Co., 24 Ohio ^ Shivers i\ Wilson, 5 Harris & John- State, 481. son, 130 ; Yerby v. Lackland, 6 Ibid. 416 ; * Pierce v. Carleton, 12 Illinois, 858; Bruce v. Cook, 6 Gill & Johnson, 345; Atcheson v. Smith, 3 B. Monroe, 502; Coward r. Dillinger, 56 Maryland, 59. Whitehead v. Henderson, 4 Smedes & ^ Barr v. Perry, 3 Gill, 313. Marshall, 704 ; Matthews v. Sands, 29 "> Stone v. Magruder, 10 Gill & John- Alabama, 13G; Flash V. Paul, Ibid. 141; son, 383; Clarke v. Meixsell, 29 Mary- Desha V. Baker, 3 Arkansas, 509 ; Love- land, 221. [623] § 697 gaenishee's relation, etc. [chap, xxxvii. and irregularities for which the defendant might obtain their reversal, there can be no doubt.^ It has, therefore, been always held, that a garnishee cannot avoid or reverse a judgment against him, on account of mere irregularities in the proceedings in the main action. They affect only the defendant, who alone can take advantage of them.^ Nor can he traverse the affidavit on which the attachment issued, where the defendant was served with process, and did not traverse it;^ nor can he inquire into the merits of the cause, as between the plaintiff and the defend- ant;^ nor is he required to make a defence on behalf of the defendant against the plaintiff's demand ; ^ nor has he any right to do so;^ nor, after judgment against the defendant, can he show that the plaintiff had no just demand against the defendant, or that the judgment ought to be altered or reversed.^ Nor has he any such relation to the main action as will entitle him, after judgment has been rendered against him, to interfere in any arrangement between the plaintiff and defendant. He is not an assignee of the judgment against the defendant, nor has he any lien upon it ; but in relation to it stands as an entire stranger.^ But where the judgment against the defendant is invalid, the garnishee may, in any stage of the proceedings prior to judgment 1 Atcheson v. Smith, 3 B. Monroe, bers v. McKee, 1 Hill (S. C), 229; Lin- 502 ; Lonierson v. Hoffman, 4 Zabriskie, flau v. Arnold, 4 Strobhart, 290 ; Cornwell 674; Pierce v. Carleton, 12 Illinois, 358 ; v. Hungate, 1 Indiana, 156 ; Baltimore, O., Hoiiston V. Walcott, 1 Iowa, 8(3; Steb- & C. R. R. Co. n. Taylor, 81 Ibid. 24; bins V. Fitch, 1 Stewart, 180; Parmer v. White v. Casey, 25 Texas, 552; Sun Mu- Ballard, 3 Stewart & Porter, 326; Thomp- tual Ins. Co. v. Seeligson, 59 Ibid. 3 ; son V. Allen, 4 Ibid. 184 ; Gunn?;. Howell, Cowan v. Lowry, 7 Lea, 620. 35 Alabama, 144 ; Pounds v. Hamner, 57 ^ Douglas v. Neil, 37 Texas, 528. Ibid. 342; O'Connors. O'Connor, 2 Grant, * Hanna v. Lauring, 10 Martin, 563; 245; Schoppenhast v. BoUman, 21 In- Kimball v. Plant, 14 Louisiana, 511; dian'a, 280 ; Ohio & M. R. W. Co. v. Alvcy, Frazier v. Willcox, 4 Robinson (La.), 43 Ibid. 180. 517 ; Brode v. Firemen's Ins. Co., 8 Ibid. 2 Stebbiiis v. Fitch, 1 Stewart, 180; 244; Planters' and Merchants' Bank v. Parmer v. Ballard, 3 Ibid. 326 ; Thomp- Andrews, 8 Porter, 404. son V. Allen, 4 Stewart & Porter, 184 ; "^ Moore v. C, R. I., & P. R. Co., 43 Smith V. Cliapman, 6 Porter, 365; St. Iowa, 385. Louis Perpetual Ins. Co. v. Cohen, 9 ^ pounds v. Hamner, 57 Alabama, 342. Missouri, 421; Houston v. Walcott, 1 ' Woodbridge v. Winthrop, 1 Root, Iowa, 86; Matheny v. Galloway, 12 557 ; Heffernan i'. Grymes, 2 Leigh, 512; Rmedes & Marshall, 475 ; Wiiitehead v. Lee v. Palmer, 18 Louisiana, 405 ; Bank Henderson, 4 Ibid. 704 ; Erwin v. Heath, of Northern Liberties v. Munford, 3 Grant, 60 Mississippi, 795 ; Benson v. HoUoway, 232 ; Hodges v. Graham, 25 Louisiana 69 Ibid. 358 ; Flash v. Paul, 29 Alabama, Annual, 365. 141 ; Security Loan Ass'n v. Weems, G9 ^ Braynard v. Burpee, 27 Vermont, Ibid. 584 ; Camberford v. Hall, 3 McCord, 616. 345; Foster v. Jones, 1 Ibid. 116; Cham- [624] CHAP. XXXVII.] GAENISHEE's RELATION, ETC. § 698 against himself, take advantage of that invalidity to prevent such judgment.^ But he can make only such objections thereto, on the ground of its invalidity, as appear on the face of the record, — he cannot go outside of the record to demonstrate the invalid- ity by parol proof. It was so held in Mississippi, in a case where the garnishee answered, acknowledging indebtedness, but aver- ring that the decree in plaintiff's favor was null and void, because there had been no service of process on the defend- ant. But the record showed that there had been service of process, and that the decree had been taken ^^ro confesso; and the court said, " Such a recital as this in the judgment or decree of a domestic court of general jurisdiction cannot be contradicted or questioned in a collateral proceeding." ^ § 698. In Louisiana, however, a garnishee was allowed to show, as a reason why judgment should not be rendered against him, that, before judgment was rendered against the defendant, the defendant was dead. This was upon the ground that the attach- ing creditor would, in such case, if the garnishee should be charged, obtain a preference over other creditors of the deceased, not authorized by the laws of that State.^ 1 Thayer r. Tyler, 10 Gray, 164 ; - Sadler v. Prairie Lodge, 59 Missis- Pratt 1-. Cunliff, 9 Allen, 90 ; Woodfolk sippi, 572. V. Whitworth, 5 Coldwell, 561 ; Erwin v. ^ Allard v. DeBrot, 15 Louisiana, 253. Heath, 50 Mississippi, 795. 40 § 700 WHEEE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIH. CHAPTER XXXVIII. WHERE ATTACHMENT IS A DEFENCE, AND THE MANNER OF PLEADING IT. § 699. The operation of an attachment against a garnishee is compulsory. He has no choice but to pay, in obedience to the judgment of the court to whose jurisdiction he has been sub- jected ; and the exercise of that jurisdiction effects a confisca- tion, for the phaintiff's benefit, of the debt due from the garnishee to.the defendant. In this proceeding it is an invariable rule, that the garnishee shall not be prejudiced, or placed in any worse sit- uation than he would have been in if he had not been subjected to garnishment; that is, if obliged, as garnishee, to pay to the plaintiff the debt he owed to the defendant, he shall not be com- pelled again to pay the same debt to the defendant. When, therefore, he is sued for that debt, either before or after he has been summoned as garnishee, he must be allowed to show that he has been, or is about to be, made hable to pay, or has paid, the debt, under an attachment against the defendant, in which he has been charged as garnishee. To what extent this defence will avail him, and how he may take advantage of it, will constitute the subject of the present chapter, and will be considered in reference, I. To the case of garnishment prior to or pending suit brought by the defendant ; and, II. To the case of suit brought after judgment against the garnishee. § 700. I. Where the Garnishment is prior to or pending Suit brought hy Defendant. In England, the doctrine has long been, that where one has been summoned as garnishee, and the defend- ant in the attachment, before judgment of condemnation of the debt, sues the garnishee for that debt, the latter may plead the attachment m abatement ; ^ but not in bar, until judgment be recovered against him.'^ It is no case for an interpleader.''-' 1 Brook V. Smith, 1 SalkeM, 280. ^ Evans i;. Matlock, 8 riiiladelphia, 2 Nathan v. Giles, 5 Taunton, 558. 271. [626] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 700 The courts in this country have generally taken the same view. The question early came up in New York, in a case where a citi- zen of Baltimore was summoned as garnishee at that place, and afterwards, on going to New York, was sued by the defendant in the attachment suit, and pleaded the attachment. It was agreed in the case, that if the court should consider the plea good, either in abatement or bar, the plaintiff should be nonsuited. Kent, C. J., after noticing the English decisions, said : " If we were to disallow a plea in abatement of the pending attachment, the defendant would be left without protection, and be obliged to pay the money twice : for we ma}- reasonably presume, that if the priority of the attachment in Maryland be ascertained, the courts in that State would not suffer that proceeding to be defeated by the subsequent act of the defendant going abroad and subjecting himself to a suit and recovery here. " The present case affords a fair opportunity for the settlement and application of a general rule on the subject. It is admitted by the case that the plaintiff owes a large debt to the attaching creditors ; and that the defendant is a resident of ^Maryland. There is then no ground to jDresume any collusion between the defendant and the creditors who attached ; and there is no pre- tence that the plaintiff was not timely notified of the pendency of the attachment, or that the attachment is not foiuided on a hond fide debt, equal at least in amount to the one due from the defendant. If the force and effect of a foreign attachment is, then, in any case to be admitted as a just defence, it would be difficult to find a sufficient reason for overruling a plea in abate- ment in the present case."^ The same views have been expressed by the Superior Court of New Ilampshire,^ by the Supreme Courts of Maine,^ Pennsjdva- nia,* South Carolina,^ Michigan,^ and Iowa,' by the Court of Appeals of Maryland,^ by the Circuit Court of the United States 1 Embree v. Hanna, 5 Johnson, 101. ^ ]\jars v. Virginia H. I. Co., 17 South 2 Haselton v. Monroe, 18 New Hamp. Carolina, 514. 598. 6 Near v. Mitchell, 23 Michigan, 382. 8 Ladd V. Jacobs, 64 Maine, 347. "^ Clise v. Freeborne, 27 Iowa, 280. 4 Fitzgerald v. Caldwell, 1 Yeates, » Brown v. Somerville, 8 Maryland, 274 ; Irvine v. Lumbermen's Bank, 2 444. Watts & Sergeant, 190; Adams v. Avery, 2 Pittsburgh, 77. [627] § 701 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. for the Third Circuit,^ and by the Supreme Court of the United States.^ § 701. In Massachusetts, the pendency of an attachment is no cause to abate the writ ; for non coyistat that judgment will ever be rendered in the attachment suit ; but it is a good ground for a continuance while the process is pending.^ This view has been adopted in Louisiana, in a case where the garnishee's answer disclosed the existence of a prior attachment, in another State, of his property, in a proceeding against him as garnishee of the same defendant. The cases are not precisely parallel, but the principle involved is the same. The court ordered a stay of further proceedings against the garnishee until the decision of the prior attachment.* In Vermont, the pending garnishment cannot be pleaded in abatement; but the court gives judgment against the garnishee in favor of his creditor, — the attachment defendant, — with stay of execution until the garnishee is released from the garnishment.^ The Supreme Court of Alabama once sustained a plea in abate- ment, which went to the writ;*^ but afterwards fell into the doc- trine declared in Massachusetts, and sustained this position in the following language: "If it be admitted that a pending attach- ment may be pleaded in abatement, it by no means follows that it should be pleaded in abatement of the writ. In general, a plea in abatement gives a better writ, and in such a case the appropriate conclusion is, a prayer of judgment of the writ, and that it be quashed. But where matter can only be pleaded in abatement, and yet a better writ cannot be given, as the writ does not abate, the prayer of the plea is, ' whether the court will compel further answer.' There are many reasons why an attach- ment pending should not be pleaded in abatement of the writ. The entertainment of such pleas would lead to the most delicate and embarrassing questions of jurisdiction, and iu the conflict an error committed by either court would lead to the injury of one of the parties litigant. Either the garnishee might be compelled 1 Cheongwo v. Jones, 3 Washington ^ Carroll v. McDonogli, 10 Martin, 609. C. C. 359. 6 jNIorton v. Webb, 7 Vermont, 123 ; 2 Wallace v. McConnell, 13 Peters, Spicer v. Spicer, 23 Ibid. 678 ; Jones v. 136 ; Mattingly v. Boyd, 20 Howard Sup. Wood, 30 Ibid. 208. Ct. 128. 6 Crawford u. Clute, 7 Alabama, 157. 3 Winthrop v. Carleton, 8 Mass. 456. [628] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 701 to pay the debt twice, or the creditor might be injuriously af- fected. All these consequences are avoided by considering it as cause for suspending the action of the creditor, until the attachment against his debtor is determined, when it can be certainly known what the rights of the parties are. When, therefore, the fact of an attachment pending for the same debt is made known to the court, where the creditor of the garnishee has brought suit, it will either suspend all proceedings until the attachment suit is determined, or render judgment with a stay of execution, which can be removed, or made perpetual, in whole or in part, as the exigency of the case may require. And as this course is equally safe, and productive of less delay, it would seem to be the most eligible." ^ The court also intimated that such a stay of execution would be directed after judgment, not- withstanding an omission, or an ineffectual attempt, to plead the matter in abatement.^ In Indiana, it was considered very doubt- ful whether a pending attachment can be pleaded in abatement, and the court manifested a disposition to concur in the Alabama doctrine.2 In California that doctrine was fully concurred in.* 1 Crawford v. Slade, 9 Alabama, 887 ; Montgomery Gas Light Co. r. Merrick, 61 Ibid. 534. See Gallego v. Gallego, 2 Brockenbrough, 285. 2 Crawford v. Clute, 7 Alabama, 157 ; Crawford v. Slade, 9 Ibid. 887. See Fitzgerald v. Caldwell, 4 Dallas, 251. 3 Smitii V. Blatcliford, 2 Indiana, 184. 4 McFadden v. O'Donnell, 18 Califor- nia, 160; Pierson v. McCahill, 21 Ibid. 122; McKeon v. McDermott, 22 Ibid. 6G7. Such are the decided cases on this point. It cannot, perhaps, be considered as yet definitively settled whether a plea in abatement will lie in such a case. My own conviction is, that such a plea should not be entertained, even where the gar- nishment takes place before the institu- tion of the suit, and much less, after. In addition to the reasons against it, above set forth, there is a very cogent one in the fact that the defendant's interest may serioush' suffer, by postponing the secur- ing of the garnishee's debt to liim, until his litigation with the plaintiff is termi- nated. Tiie garnishee may be in doubt- ful circumstances, making legal proceed- ings against him necessary for securing the demand ; or he may be about to re- move or abscond out of the jurisdiction of the court, or to dispose of his property in fraud of his creditors, justifying an attachment against himself ; and yet, if lie may plead the attachment in abate- ment of a suit by the defendant against him, his debt to the defendant may be entirely lost. The garnishee can be in no wise injured bj* the double proceeding against him , for no court, upon being in- formed in a proper manner of the fact of the two proceedings, would hesitate to take such measures as would effectually secure the garnishee against double lia- bility. This might be easily done, by suffering judgment to be rendered against him in the suit, if that were in a condi- tion for j udgment before the garnishment, and the m»ney to be collected and held subject to the attachment. Views which would sustain those iiere expressed were announced by tlie Supreme Court of Vermont, in Hicks v- Gleason, 20 Ver- mont, 130, where it was held, that the defendant's rights to the effects in the garnishee's hands are only so far extin- guished as to prevent his making any disposition of them winch would interfere with their subjection to the payment of [629] § 702 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVHI. In Georgia, the pendency of an attachment is not pleadable in bar, but when pleaded will justify the court in so moulding the judgment as to stay execution for a sufficient amount of the debt to protect the garnishee against a double payment.^ And the U. S. Circuit Court in New Hampshire held, that a plea in abate- ment, setting up a garnishment of the defendant in a State court, could not be pleaded in abatement, but that a continuance ex comitate should be granted, in order that the plaintiff in the State court might have an opportunity to make his attachment available .2 § 702. In England, an attachment cannot be pleaded puis dar- rein continuance ; because after action brought upon a debt, it cannot be attached under the custom of London.^ The Supreme Court of Pennsylvania assigned, no doubt, the true reason why this rule obtained in England, that when once a suit has been in- stituted in the superior courts of Westminster, for the recovery of a debt or demand, though it have not been followed by a judgment, the inferior courts cannot, by issuing an attachment, prevent the plaintiff from proceeding.^ In this country, the question turns altogether upon the point whether a debt in suit can be attached.^ Wherever the affirmative of this question is held, it must follow, of necessity, that an attachment, pending the action, may be pleaded p>uis darrein continuance. In Alabama the point came up in a case where the action on the debt and the attachment were in the same court, and the plea was sustained.^ But where the action and the attachment were in courts of dif- ferent jurisdictions — the former in a District Court of the United States, and the latter in a State Court— it was decided by the Supreme Court of the United States that the plea was bad on demurrer. In the opinion of that court on tiiis point the following views are expressed : " The plea shows that the pro- ceedings on the attachment were instituted after the commence- the plaintiff's demand ; and that for every ^ Shealy v. Toole, 56 Georgia, 210. purpose of making any demand whicli ^ Lynch ;•. Hartford F. I. Co., 17 Fede- Diay be necessary to fix the garnisliee's ral Reporter, G27. liability to the defendant, or of securing = priv. Lond. 272; 3 Leonard, 210; it by legal proceedings or otherwise, the Palmer v. Hooks, 1 Ld. Raymond, 727; defendant's rights remain unimpaired by Savage's Case, 1 Salkeld, 291. the garnishment ; but can be exercised * McCarty v. Emlen, 2 Yeates, 190. only in subordination to the lien thereby ^ gee Cliapter XXXII. created. ^ Hitt v. Lacy, 3 Alabama, 104. [630] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 703 ment of this suit. The jurisdiction of the District Court of the United States, and the right of the plaintiff to prosecute his suit in that court, having attaclied, that right could not be arrested or taken away by any proceedings in another court. This would produce a collision in the jurisdiction of courts, that would extremely embarrass the administration of justice. If the attach- ment had been conducted to a conclusion, and the money recov- ered of the defendant, before the commencement of the present suit, there can be no doubt that it might have been set up as a payment upon the note in question. And if the defendant would have been protected pro tmito, under a recovery had by virtue of the attachment, and could have pleaded such recovery in bar, the same principle would support a plea in abatement of an at- tachment pending prior to the commencement of the present suit. The attachment of the debt, in such case, in the hands of the defendant, would fix it there, in favor of the attaching cred- itor, and the defendant could not afterwards pay it over to the plaintiff. The attaching creditor would, in such case, acquire a lien upon the debt, binding upon the defendant, and which the courts of all other governments, if they recognize such proceed- ings at all, could not fail to regard. If this doctrine be well founded, the priority of suit will determine the right. The rule must be reciprocal ; and where the suit in one court is com- menced prior to the institution of proceedings under attachment in another court, such proceedings cannot arrest the suit ; and the maxim, qui prior est tempore, potior est jure, must govern the case." 1 § 703. Manifestly, a pending attachment should have no effect upon an action by the creditor against his debtor, unless the attachment acts directly on the latter, and not intermediately through another. Therefore, where a town placed money in the hands of its agent, to be paid to one who had been employed by the town, and before it was paid over, the agent was garnished in a suit against the party to whom the money was payable ; which party afterwards brought suit against the town for the sum due him ; it was held, that the garnishment of the agent was no defence.^ 1 Wallace I'. McConnell, 13 Peters, 136. ~ Clark i;. Great Barrington, 11 Pick, 260. [631] § 704 WHEEE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. § 703 a. Equally manifest is it that the pendency of an attach- ment is no defence to an action against the garnishee by an assignee of the defendant, to recover the debt in respect of which it is sought to charge the garnishee. Thus, where an indorsee of a negotiable promissory note sued the maker thereof, who pleaded a pending garnishment of himself in an action against the payee, it was held to be no defence.^ § 703 I. As we have seen, a plaintiff may, by garnishment, at- tach a debt due from himself to the defendant ; ^ but this will not authorize him to plead such garnishment either in abatement or in bar of a suit by the defendant against him for that debt. Thus, a Rhode Island corporation sued B. and M., of New York, in the United States Circuit Court for New York; and B. and M. pleaded, that before that suit was instituted they had brought suit in the Supreme Court of New York against the corporation, and had therein attached the debt sued for by the corporation ; whereby, under the law of New York, all sums of money owing by them to the plaintiff were held as security for the satisfaction of such judgment as they might recover against the corporation. Upon demurrer this plea was held bad, either in abatement or in bar ; its essential vice being, that it sought to exclude the corpo- ration from the benefit of a cross action, and to restrict it to a defence of the suit instituted by B. and M. against it. " We are," said the court, " referred to no case in which a defendant has been allowed to defeat an action at law against him by plead- ing the existence of a pending suit brought by himself against his adversary." ^ § 704. The question has arisen, whether the pendency of an attachment relieves the garnishee from accountability to the de- fendant, after the termination of the attachment suit, for interest on his debt during the pendency of that suit. In the cognate question of the liability of the garnishee to have judgment ren- dered against him, as such, for interest on his debt, we have seen that if there is no contract on his part to pay interest thereon, he cannot be charged therewith.^ The same rule was applied in 1 Mason v. Noonan, 7 Wisconsin, GOO. » New England Screw Co. v. Bliven, 2 ^nle, § 543. 3 Blatchford, 240. * Ante, § 005. [632] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 704 a Massachusetts to his liability to the defendant after the termina- tion of the attachment suit. It was there held, that where inter- est accrues b}^ way of damages for the non-paymen-t of the debt, it cannot be recovered by the defendant from the garnishee for the period of time that the attachment suit was pending. In such case he is in no fault for not paying, and as he made no express agreement to pay interest, he ought not to be charged with it. But where the debt is one bearing interest, the interest is the debt as much as the principal, and he ought to pay it.^ In Pennsylvania, in cases where it does not appear that the debt bore interest, it was held to be clearly the general rule, that a garnishee is not liable for interest while he is restrained from the payment of his debt by the legal operation of an attachment ; unless it should appear that there is fraud, or collusion, or un- reasonable delay occasioned by the conduct of the garnishee.^ It was, therefore, held, that an attachment might be pleaded in bar of interest on the debt, during the pendency of the attach- ment, although the garnishee had not paid anything under the attachment, and it had been discontinued.^ This rule proceeds upon the presumption, that the garnishee being liable to be called upon at any time to pay the money, has not used it. But where one attaches money in his own hands, no necessity exists for his holding it to answer the attachment, and consequently no presumption arises that he has not used it ; and he will, therefore, be charged with interest during the pendency of the attachment.* § 704 a. In reference to the question of the garnishee's right to set up a garnishment as a defence against his liability to the defendant for interest on his debt during the pendency of the garnishment proceeding, it is of first importance that that proceed- ing should appear to have been a lawful one as against the gar- nishee ; for if he was garnished under a void process, and after being discharged therefrom the attachment defendant sue him on his debt, the garnishment will afford him no protection against the payment of interest during its pendency.^ 1 Oriental Bank v. Tremont Ins. Co., 3 Updegraflf r. Spring, 11 Sergeant & 4 Metcalf, 1 ; Bickford v. Rice, 105 ilass. Rawle, 188. 340; Huntress r. Burbank, 111 Ibid. 213. * Willing v. Consequa, Peters C. C. 2 Fitzgerald v. Caldwell, 2 Dallas, 215 ; 301. Weber v. Carter, 1 Philadelphia, 221. ^ Hawkins v. Georgia Nat. Bank, 61 Georgia, 106. [633] § 706 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIH. S 705. In pleading a pending attachment in abatement, the plea must contain averments of all the facts necessary to give jurisdiction to the court in which the attachment is pending, and must show whether the whole or what portion of the debt has been attached. A plea, therefore, setting forth that the defend- ant had been summoned as garnishee, under process issued on a judgment, but not stating the amount of the judgment, is bad on general demurrer.^ In Ohio it was held, that the previous gar- nishment of the defendant, in another State, and the making of an order by the court in the garnishment case, requiring the gar- nishee to pay into court the amount of his indebtedness, to satisfy the attaching creditor, was a good defence to an action in Ohio by the attachment defendant against the garnishee for the same debt, though the money had not been paid into the court having cognizance of the garnishment.^ And where a judgment debtor is charged as garnishee, and pays the debt under execution against him as such, and afterwards the judgment creditor issues execu- tion against him, he can apply to the court out of which this execution issued for an order to enter satisfaction of the judgment on which it is based. It is not a case for the interposition of a court of chancery .2 § 706. II. Where suit is brought after Judgment rendered against the Garnishee. When, by a court having jurisdiction of the action and of the garnishee, judgment is rendered against him, and he has satisfied it in due course of law, such judgment is conclusive, against parties and privies, of all matters of right and title decided by the court, and constitutes a complete defence to any pending * or subsequent action by the defendant against the garnishee, for the amount which the latter was compelled to pay ;^ and this though the court be a foreign tribunal.^ But, of 1 Crawford v. Clute, 7 Alabama, 157; Ibid. 90. Ross v. Pitts, 39 Ibid. G06; Crawford v. Slade, 9 Ibid. 887. Moore v. Spackman, 12 Sergeant & 2 Baltimore & 0. R. R. Co. v. May, 25 Rawle, 287 ; Coates v. Roberts, 4 Rawle, Ohio State, o47. 100; Anderson v. Younp:, 21 Penn. State, 3 Chandler v. Faulkner, 5 Alabama, 443; Ciieairs v. Slaten, 3 Humplireys, 5(57 101 ; Adams v. Filer, 7 Wisconsin, 306. 4 Cole V. Flitcraft, 47 Maryland, 312. ^ Barrow v. West, 23 Pick. 270 ; Tay- ^ Post, § 710; Killsa v. Lermond, 6 lor r. Piielps, 1 Harris & Gill, 492 ; Gunn Maine 110; Holmes v. Renisen, 4 John- v. Howell, 35 Alabama, 144 ; Cochran v. son C'h'y, 460; 20 Johnson. 229; Fos- Fitch, 1 Sandford Ch'y, 142; Noble v. ter V. Jones, 15 Mass. 185; Hitt v. Lacy, Thompson Oil Co., 09 Penn. State, 409 ; 3 Alabama, 104; Mills v. Stewart, 12 Morgan i.-. Neville, 74 Ibid. 52; Bolton v. [634] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 706 a course, such a judgment cannot affect the rights of any one not a party or privy to it.^ § 706 a. A judgment in favor of the garnishee is equally con- clusive against the plaintiff, though obtained by means of fraud, and even perjury, committed by a garnishee. A case arose in New Hampshire, where, after the garnishee had answered and was discharged, the plaintiff brought an action on the case against him for obtaining his discharge by falsehood and fraud in his dis- closure, averred in the declaration to have been " wholly false, fraudulent, wicked, wilful, and designed to defraud the plaintiff of his just claim against his debtor; by reason of which, the plaintiff was defrauded and prevented from recovering his debt against his debtor, and has wholly lost the same." There was a demurrer to the declaration, which was sustained, on the follow- ing grounds : " What is the foundation of the plaintiffs cLaim and charge ? The substance of his complaint is, that the defend- ant had in his hands funds for which he ought to have been charged as trustee in that suit, and that by fraudulent contriv- ance with B. (the defendant in the attachment suit), and by falsehood and fraud in his disclosure, he obtained an unjust judgment for his discharge. The plaintiff, therefore, undertakes, as the foundation of his claim, to put in issue the precise point that was adjudged between the same parties in the former suit, to wit: whether the defendant had in his hands funds for which he ought in that process to have been charged as the trustee of B. " The same facts that would be required to maintain this dec- laration, would have been sufficient to charge the defendant as trustee in the former suit. To maintain this declaration the plaintiff would be obhged to show that, by fraudulent transfers and conveyances, property of B. came into the possession of the defendant, for which he was chargeable in that suit as trustee ; otherwise he would not show that the defendant's disclosure was Penn. Companv, 88 Ibid. 2G1 ; Balti- Lane, 9 Illinois (4 Gilman), 3o4 ; Cooper more & 0. R. R. Co. v. May, 25 Ohio v. McClun, 16 Ibid. 4.35 ; Gates v. Kerby, State, .347 ; Wigwall v. Union C. & M. Co., 13 Missouri, 1-57 ; Funkhouser v. How, 24 37 Iowa, 129. Ibid. 44; Dobbins v. Hyde, 37 Ibid. 114; 1 Wise V. Hilton, 4 Maine, 435 ; Olin Wilson v. Murphy, 45 Ibid. 409 ; Mankin V. Figeroux, 1 McMullan, 203; Miller r. v. Chandler, 2 Brockenbrough, 125; McLain, 10 Yerger, 245; Lawrence v. Lyman u. Cartwright, 3 E. D. Smith, 117. [635] § 708 "WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVni. false, or that he had suffered any damage by losing a security for the payment of his debt against B. ; but if the same facts had appeared in that suit, of course the trustee would have been charged. " It is quite manifest that in this action the plaintiff seeks to try again the same question that was tried and decided in the former suit between the same parties. This, on well-settled prin- ciples, he cannot be permitted to do ; and we are not able to see any peculiar hardship in the application of so familiar a general principle to this case. " This action is of new impression. If the experiment should succeed, in all the numerous cases where plaintiffs seek to charge trustees on the ground of fraudulent conveyances made to them by debtors, after a judgment discharging the trustees, they might be sued again, as in this case, and the same question tried anew in another action." ^ § 707. The discharge of a garnishee in the attachment suit is no bar to an action by the defendant for any cause of action existing at the time of the discharge. ^ Nor does a judgment in favor of the garnishee in one attachment suit preclude his being charged as garnishee on account of the same debt, in another suit in favor of a different party .^ Nor does the judgment against the garnishee amount to res judicata, as between him and the defendant, so as to preclude the latter from claiming more in his action than the garnishee was considered, in the attachment pro- ceedings, to owe. Were such the case, it would be in the power of a garnishee, by confessing in his answer a smaller indebtedness than actually existed, to practise an irremediable fraud upon his creditor.* § 708. Though judgment against the garnishee, and satisfaction thereof, constitute a complete bar to an action by the attachment 1 Lyford v. Demerritt, 32 New Ilamp. bama, 704 ; Baxter v. Vincent, 6 Ver- 234. niont.GU ; Barton v. Albriglit, 20 Indiana, 2 Puffer V. Graves, Foster, 258. 489; Ruff v. Ruff, 85 Pcnn. State, 333. 3 Spruill V. Trader, 5 Jones, 39; See Tarns y. Bullitt, 35 Penn. State, 308, Breading v. Siegworth, 29 Penn. State, where it was held, that a judgment 3%. against a garnishee is no bar loan action * Robeson v. Carpenter, 7 Martin, n. s. by the assignees in insolvency of a de- .30; Brown v. Dudley. 33 New Ilanip. fondant, to recover from hitn more than 511 ; Cameron i;. StoUenwerck, G Ala- he was charged for as garnishee. [636] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 708 defendant, to the extent of the amount so paid, is the judgment alone, without satisfaction, such a bar? On this point the authorities do not agree. In England it is held, that attachment and condemnation of a debt is a bar to an action upon the same debt.i In this country the same has been held in Maine,^ Massa- chusetts,^ Florida,* Indiana,^ and Kentucky.^ The Circuit Court of the United States for the Third Circuit held, that a judgment in attachment, where the attachment was laid on effects in the plaintiff's hands, might be pleaded in bar, by way of offset, or given in evidence on notice.' In Pennsylvania and Maryland, however, to entitle the garnishee to a plea in bar, it must appear that he has been compelled to pay the debt, or that an execution has been levied on his property .^ And in Georgia, in an action by an indorsee against the maker of a promissory note, trans- ferred to him after the maker had been summoned as garnishee, it was decided that the recovery of judgment against the gar- nishee, without satisfaction, did not constitute a defence to the action ; and that if, after judgment obtained against the maker of the note, he should satisfy the judgment rendered against him as garnishee, the judgment on the note would thereby be extin- guished ; except, perhaps, for costs.^ And in Alabama, satisfac- tion of the judgment against the garnishee is necessary to absolve Mm from liability.^'' And so in Texas.^^ The Supreme Court of Massachusetts, however, has somewhat modified its first ruling on this subj'ect, holding that where it does not appear that execution has been awarded against the 1 Savage's Case, 1 Salkeld, 291 ; Mc- the judgment by default was rendered Daniel ?•. Hughes, 3 East, 3G7 ; Turbill's before, and the discharge of the garnishee Case, 1 Saunders, 67, Note 1. ordered after, the commencement of the '^ Maitiiews v. Houghton, 11 Maine, defendant's suit against him. Sargeant 377; Norris r. Hall, 18 Ibid. .332; Mc- r. Andrews, 3 Maine, 199. AUister v. Brooks, 22 Ibid. 80, But it 3 Perkins v. Parker, 1 Mass. 117 ; Hull must be a final judgment, not a judgment v. Blake, 13 Ibid. 153. by default merely. Therefore, where, ^ Sessions v. Stevens, 1 Florida, 233. under the practice in Maine, a garnishee ^ Covert v. Nelson, 8 Blackford, 265; was defaulted, and judgment was ren- King r. Vance, 46 Indiana, 246. dered against tlie goods, effects, and ^ Coburn v. Currens, 1 Bush, 242. credits of the defendant in his hands ; "^ Cheongwo v. Jones, 3 Washington and afterwards on scAre facias, he appeared C. C. 359. and disclosed to the court that he was ^ Lowry v. Lumbermen's Bank, 2 not liable as garnishee, and was dis- Watts & Sergeant, 210 ; Brown f. Somer- charged ; and afterwards, when sued by ville, 8 Maryland, 444. the defendant, undertook to set up the 9 Brannon v. Noble, 8 Georgia, 549. judgment by default in bar of the ac- i" Cook v. Field, 3 Alabama, 53. tion ; it was held to be no bar, although ^^ Farmer v. Simpson, 6 Texas, 303. [637] § 710 a WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. garnishee, and that he has been called on or compelled to pay, it is not such a payment, merger, or discharge of the original debt as to be pleaded in bar ; " and this position was taken in the United States District Court for the Southern District of New York.2 § 709. A case came before Story, J., on the circuit, in which the effect to be given to a judgment against a garnishee was con- sidered, where it appeared that the plaintiff in the attachment had, by his neglect to comply with the local laws, put his judg- ment in a state of suspension, so that execution could not issue upon it, and it could not be revived by a scire facias. The court held, that the lien of the judgment against the garnishee was lost by the laches of the plaintiff, and that the judgment was no defence against an action for the debt.^ § 710. There can be no doubt that, as a general rule, where a part or the whole of the debt of the garnishee to the defendant has been paid under the judgment against him, such payment is as effectual a bar, either pro tanto or complete, to a subsequent action by the defendant upon that debt, as if the payment had been made to the defendant himself.* And where, in an action against the garnishee, by his creditor, the attachment defendant, the agreed statement of facts submitted to the court was silent as to whether the amount of the judgment against the garnishee was equal to his debt to the defendant, it was presumed to have been so.^ And a payment of a debt by one of several joint debtors under garnishment, is a good defence for all against a suit by the defendant.^ § 710 a. Wherever such a payment would avail the garnishee, it will equally avail one collaterally and contingently so bound as to become liable to pay the debt in respect of which the gar- nishee was charged. Thus, where A., a defendant in a judg- ment, removed the judgment to the appellate court, and in order 1 Meriam v. Rundlett, 13 Pick. 511. Alabama, 144 ; Dole v. Boutwell, 1 Allen, 2 McCarty r. Steam Propeller, &c., 4 286; Laild v. Jacobs, G4 Maine, 347; Federal Reporter, 818. Allen r. Watt, 79 Illinois, 284 ; Hannibal 3 Flower v. Parker, 3 Mason, 247. & St. J. R. R. Co. v. Crane, 102 Ibid. 261. 4 Ante, § 706; Brown v. Dudley, 33 •■* iMcAllister r. Brooks, 22 Maine, 80. Kew Ha'mp. 5U ; Gunn v. Howell, 35 e Cook r. Field, 3 Alabama, 53. [r.38] CHAP. XXXVIIT.] AND THE MANNER OF PLEADING IT. § 711 thereto gave a bail bond with B. as surety ; and afterwards A. was compelled by an attachment proceeding in another State to pay the amount of the judgment ; and after such payment the judgment was affirmed by the appellate court; and B. was sued on the bail bond ; it was held, that A.'s payment under the attachment was a valid defence in favor of B.^ § 711. Where a payment under a judgment against a garnishee is relied on as a defence to a suit by the attachment defendant, it is important to observe the rules upon which it will be sus- tained. They may be compendiously stated as follows : 1. The judgment against the garnishee, under which he al- leges he made the payment, must be proved.^ Of course, the proper evidence of the judgment is a duly certified exemplifi- cation of the record ; but in Massachusetts it was held, that a recital of the judgment in the execution against a garnishee jus- tified him in paying the amount thereof, and that the payment so made was a good defence by him in an action against him by the attachment defendant.^ 2. It must have been a valid judgment. No payment made under a void judgment, however apparently regular the proceed- ings may have been, can protect the garnishee against a subse- quent payment to the defendant or his representatives. Thus, where an attachment was obtained against one supposed to be living in a foreign country, but who was dead when the suit was connnenced, it was held, that a payment made by a garnishee, under execution, was no defence against an action by the defend- ant's administrator ; the whole proceedings in the suit being a mere nullity.* 3. The payment must not have been voluntary. Any pay- ment not made under execution will be regarded as voluntary, and, therefore, no protection to the garnishee;^ unless tlie law 1 Noble V. Thompson Oil Co. 69 Penn. paid the judgment under an execution State, 409. afterwards issued, but wliich was irreg- - Barton v. Smith, 7 Iowa, 85. ular and mitflit have been set aside on 3 Leonard v. New Bedford Savings liis application, tlie pnyment was held Bank, 116 Mass. 210. to be no protection against tlie garnish- * Loring v. Folger, 7 Graj', 505. See ment. Home Mutual Ins. Co. v. Gamble, Pounds V. Hamner, 57 Alabama, 342. 14 Missouri, 407. See Burnap v, Camp- 5 Wetter v. Rucker, 1 Broderip & bell, 6 Gray, 241. In Alabama, it is held, Bingham, 491. In Missouri, where a that a garnishee against whom a judg- judgment debtor was garnished, who ment was regularly rendered, which [639] § 711 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. authorized the court to require the garnishee to pay the money into court ; when such a payment will be regarded as, in legal effect, the same as a payment under execution.^ 4. The payment must be actual, and not simulated or con- trived. Thus, where certain persons were charged as garnishees, and credited the plaintiff on their books with the amount of the judgment, and debited the defendant with the same amount, but did not in fact pay the money, it was held to be no payment.^ 5. The judgment under which the payment was made must have been rendered by a court having jurisdiction of the subject- could have been enforced by execution, might satisfy the judgment, witiiout waiting to be coerced by execution. Mills I'. Stewart, 12 Alabama, 90 ; Mont- gomery Gas Light Co. v. Merrick, 61 Ibid. 534. 1 Ohio & M. E. W. Co. v. Alvey, 43 Indiana, 180; Rochereau v. Guidry, 24 Louisiana Annual, 294. 2 Wetter ;;. Rucker, 1 Broderip & Bingham, 491. The following case is reported in ]Maryland : A. executed to B. several notes, for different amounts, and payable at different times ; and was afterwards garnished, in a suit against B., and charged in respect of all of the notes. After being so charged, A. bought the judgment which had been rendered against him as garnishee, for about one- third of its amount. After this, A. was sued by an indorsee for value of one of the notes, in respect of which the judg- ment against him as garnishee had been rendered. A. set up that judgment and the transfer of it to him, as a defence, by way of a payment under garnishment. It was held, however, that for the pur- poses of that case the holder of the note was to be regarded as occupying the situation of the attachment defendant, from whom he acquired the note ; that the defendant would have been interested, and the holder of the note was interested in the payment of the whole amount of the judgment against A. ; and A., by the purchase of the judgment, occupied no l)etter position than any other purchaser of it would occupy ; and that such pur- cliase was no defence against the note, though as between A. and tlie attach- ment plaintiff the judgment was satisfied [640] and closed. Brown v. Somerville, 8 Maryland, 444. In Connecticut, in Cutler V. Baker, 2 Day, 498, the following case was presented. A. sued out an attach- ment against B., and summoned C. as garnishee. A. having obtained judgment and execution against B., caused demand to be made upon C. for the goods and effects of B., toward satisfying the exe- cution, but none were exposed. B. then sued C, who was still liable to A. as gar- nishee. C. being threatened by A. with a scire facias against him as garnishee, to avoid cost, gave a note in satisfaction of so much as he owed B., which note was in the following form : " Value received I promise to pay A., $!344,52, with inter- est, whenever a certain suit in favor of B., now pending against me, shall be determined — provided said suit shall be determined in my favor — otherwise this note is to be given up to me." It was held that this was a sufficient payment to protect C. against a judgment in favor of B. It is very difficult to understand the ground for such a decision. The court gave no opinion. It is not easy to dis- cover how the note could be considered as a payment at all, or anything more than an agreement to pay on a certain contingency; much less a payment in obedience to a legal proceeding. In Troyer v. Schweiser, 15 Minnesota, 241, it was held, tliat a payment by tlie gar- nishee under a judgment upon which no execution had been issued, was sufficient to protect the attachment plaintiff against an action by the dclendant, after that judgment had been set aside, to recover back the amount paid by the garnishee. CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 711 matter and the parties. If there be a defect in this respect, the payment will be regarded as voluntary, and therefore unavail- ino-.i jf^ however, the court have jurisdiction of the subject- matter and the parties, it will be presumed, when a payment under the judgment is pleaded by the garnishee, that all the proper steps were taken to charge him ; ^ and a payment on execution under its judgment will protect the garnishee, though the judg- ment may have been irregular, and reversible on error ; ^ and a reversal of it by the defendant for irregularity, after payment by the garnishee, Avill not invalidate the payment.'^ But if the gar- nishee contest the jurisdiction of the court, and his objection is overruled, and judgment rendered against him, a payment made by him under that judgment cannot be collaterally impeached elsewhere, on the ground that the court had no jurisdiction. Its decision on that point is conclusive in favor of the garnishee.^ 6. Though the court have jurisdiction of the parties, and its judgment be valid as against the garnishee, yet if the law require the plaintiff, as a condition precedent to obtaining execution, to do a particular act, and without performing the condition he ob- tain execution, and the garnishee make payment under it, the payment will be no protection ; for it is in the garnishee's power to resist the payment until the condition be fulfilled ; failing in which, his payment is regarded as voluntary. Thus, in Pennsyl- vania, where a statute required that before- payment could be exacted from a garnishee, the plaintiff should give a bond to answer to the defendant, if he should, within a year and a day, disprove or avoid the debt ; and a garnishee paid the amount of the judgment to the attachment plaintiff, without execution, and without such bond being given ; it was held, that, as his defence to an action on the debt rested on his having been compelled by due course of law to pay it as garnishee, and he in fact had not 1 Harmon v. Bircharcl, 8 Blackford, 674; Pierce r. Carleton, 12 Illinois, 358; 418; Ford y. Hurd, 4 Smedes & Marshall, Houston v. Walcott, 1 Iowa, 86; Steb- 683; Robertson v. Roberts, 1 A. K. Mar- bins r. Fitch, 1 Stewart, 180; Thompson shall, 247 ; Richardson v. Hickman, 22 v. Alien, 4 Stewart & Porter, 184 ; Gunn Indiana, 244 ; Stimpson r. Maiden, 109 v. Howell, 35 Alabama, 144 ; Montgora- Mass. 313 ; Laidlaw v. Morrow, 44 Mich- ery Gas Light Co. v. Merrick, 01 Ibid, igan, 547 ; Wells v. American Ex. Co., 55 534 ; Webster ;•. Lowell, 2 Allen, 123. Wisconsin, 23. * Duncan v. Ware, 5 Stewart & Porter, 2 Morgan v. Neville, 74 Penn. State, 119. 62. s Wyatt's Adm'r v. Rambo, 29 Ala- 8 Atcheson v. Smith, 3 B. Monroe, bama, 510; Gunn y. Howell, 35 Ibid. 144. 502 ; Lomerson v. Hoffman, 4 Zabriskie, 41 [641] § 714 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. and could not have been compelled so to pay it, the payment he had made was no defence to the action. ^ The same view was entertained in Mississippi,^ and in lowa.^ In the last-named State the law provides that a garnishee shall not be made liable on a debt due by negotiable or assignable paper, unless such paper is delivered, or the garnishee completely exonerated or indemni- fied from all liability thereon, after he may have satisfied the judgment ; and it was there held, that if such a garnishee suffer judgment to go against him, in an action against the payee of the paper, without requiring such exoneration or indemnification, he cannot set up a payment made by him under the judgment as a defence to an action by an assignee of the paper, who acquired title to it before the garnishment.* § 712. To entitle a garnishee to the protection of a judgment against him as such, all the facts required by statute to enable the attachment plaintiff to hold the debt due by the garnishee, must appear in the record of the attachment suit ; and if it ap- pear that the attachment was not legally served on the garnishee, so as to reach the debt in his hands, his answering as garnishee, and the subsequent judgment against him, will not avail him.^ § 713. The question here occurs. Is the garnishee to be held responsible for the regularity of the proceedings in the suit in which he is garnished ? We have seen that he is not allowed to take advantage of irregularities or errors in those proceedings, in order to avoid or reverse a judgment against him.^ Manifestly, then, there can be not the least obligation on him to watch their regularit}^ nor can he in any way be held responsible for it.^ § 714. In order to entitle one to plead an attachment as a conclusive defence, there should be no neglect, collusion, or misrepresentation on his part, in the progress of the attachment 1 Myers v. Urich, 1 Binney, 25. See « Ante, § 697. Moyer v. Lobengeir, 4 Watts, 890. "^ Parmer v. Ballard, 3 Stewart, 326 ; 2 Oldham v. Ledbctter, 1 Howard Tubb v. Madding, Minor, 129; Gilder- (Mi.), 43; Grissom v. Reynolds, Ibid, sleeve v. Caraway, 19 Alabama, 246; 570. Morrison v. New Bedford Institution, 7 3 McPhail V. Hyatt, 29 Iowa, 137. Gray, 267 ; Wheeler v. Aldrich, 13 Ibid. 4 Yocum f. White, 36 Iowa, 288. 51; Burton v. District Township, 11 ■^ Desha v. Baker, 3 Arkansas, 509. Iowa, 166. See ante, § 451 h. [642] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 715 suit. For if his conduct be deceptive, and his statements untrue, and especially if this be so in collusion with the attachment plain- tiff, the judgment will not be conclusive against his creditor,^ Thus, one was summoned as garnishee of A., and answered that he was indebted to A., as guardian^ on a promissory note given for a parcel of land ; which note was secured by deed of trust on the land. The attachment plaintiff traversed the truth of the answer, alleging that the note or debt was due to A. individually, and not as guardian. Afterwards, when the case was called for trial, the garnishee failed to appear ; and the plaintiff proceeded to introduce testimony, and there was judgment against the garnishee. The law afforded him means to protect liiraself by a bill of interpleader, and otherwise, from an unjust judgment, but he failed to avail himself thereof. It was held, that the judgment against him, and payment thereof, did not affect the rights of the guardian or the ward, nor constitute any defence against the payment of the garnishee's debt on the note to the guardian.^ In Delaware, a case arose where the judgment against the gar- nishee, which he set up as a defence, was not rendered upon a verdict, but upon a reference entered into between the garnishee and the attaching plaintiff; and it was sought to deprive him of the protection of his payment under that judgment, because it was the result of a reference ; but the court held it to be as bind- ing on him as a verdict, and, in the absence of fraud or collusion, equally a protection to him.^ § 715. The importance of great care in the framing of a gar- nishee's answer is strikingly enforced, in connection with the subsequent use of the judgment against him as garnishee, as a defence to an action upon the debt in respect of which the judg- ment was rendered. For he cannot avail himself of such judg- ment, or of a payment under it, as a defence, unless it appear that the money paid was on account of the same debt for which he is sued.^ And as the record of the recovery, including the answer of the garnishee, must be given in evidence in the action 1 Coates V. Roberts, 4 Eawle, 100; * Qornwell ?'. Hungate, 1 Indiana, 156; Seward v. Heflin, 20 Vermont, 144. Sangstcr ;'. Butt, 17 Ibid. 354; Dirlam v. 2 Horton v. Grant, 56 Mississippi, 404. Wenger, 14 Missouri, 548. 8 Stille V. Layton, 2 Harrington, 149. [643] § 717 WHERE ATTACHMENT IS A DEFENCE, .[CHAP. XXXVIIl. by the creditor against him who was garnishee, the latter should not fail to describe particularly in his answer the debt in respect of which he is garnished, and to state every fact within his knowledge having any bearing upon his liability ; so that, after- wards, the record in the attachment suit shall exhibit all that is necessary to a successful defence against an action for the same debt. Thus, A. answered as garnishee, that he was indebted to the defendant, as executor of B., in a certain sum, but did not state the nature of the debt. Afterwards, on being sued by an assignee of a note given by his testator to the defendant, he pleaded the judgment which had been rendered against him as garnishee,, and payment thereof, in bar ; but the plea was held bad, on demurrer, because it did not aver that the debt in respect of which he was garnished was the same as that sued upon.^ A. and B. were joint makers of a note to C. A. was summoned as garnishee of C, and did not answer, but suffered judgment by default to be given against him, and paid the judgment. After- wards A. and B. were sued on the note by C, and set up the payment of the judgment as a payment i^ro tanto ; but it was held insufficient, because in its^f affording no evidence that A. was charged as garnishee on account of the note.^ § 716. \A^here the answer of the garnishee is the basis of the judgment against him, and the matter constituting the garnishee's liability is therein set forth, the record will sufficiently establish his defence, when sued by the attachment defendant ; but where there was judgment by default against the garnishee, for want of answer, he must either be deprived of his defence, because the record does not show for what liability he was charged, or be permitted to show that fact by parol proof. As it is an invari- able rule that the garnishee shall not be required to pay his debt twice, there can be no doubt that he may by parol proof identify the debt for which he was charged with that on which he is sued ; and it was so held in Alabama.^ § 717. Usually, as between the garnishee and the defendant in the attachment, difficulty may not arise from insufficiency in the 1 Harmon v. Bircliard, 8 Blackford, 2 Hutchinson v. Eddy, 29 Maine, 91. 418. See Humphrey v. Barns, Croke, See Dirlani v. Wensjer, 14 Missouri, 548. Eliz. 691. 8 Cook v. Field, 3 Alabama, 53. [644] CHAP. XXXVIII.] AND THE MANXER OF PLEADING IT. § 717 garnishee's answer ; but as between the garnishee and an assignee of the debt, cases are likely to occur, in which the garnishee may, for want of fulness and explicitness in his answer, be com- pelled to pay his debt a second time. If at any time prior to judgment against a garnishee, he become aware of an assignment of his debt, made before the garnishment, it is his duty to bring that fact to the attention of the court, in order that, if practi- cable, the assignee may be cited to substantiate his claim, or that the court may withhold judgment. If the garnishee, know- ing the existence of such an assignment, make no mention of it in his answer, the judgment against him will be no protection to him against an action b}' the assignee.^ In Alabama, the statutory practice is, where a garnishee fails to answer, to render judgment «m against him for the full amount of the plaintiffs demand ; upon which judgment a scire facias issues against the garnishee, returnable to the next term of the court, to show cause why final judgment should not be entered against him ; and upon such scire facias being dul}- executed and returned, if the garnishee fail to appear, and discover on oath, the court confirms the judgment, and awards execution for the plaintiff's whole judgment and costs. In a case under this prac- tice, the garnishee, without waiting for the scire facias to issue, paid the plaintiff the amount of the judgment nisi, and upon being afterwards sued by the indorsee of a promissory note he had given to the attachment defendant, pleaded that payment in bar. It appeared that the writ in the action on the note was served on the maker of the note prior to the time when he would have been required by the scire facias — if one had been issued — to appear and answer ; but no scire facias was issued. The 1 Prescott V. Hull, 17 Johnson, 284; v. Heflin, 20 Vermont, 144, Hall, J., Colvin V. Rich, 3 Porter, 175 ; Lamkin v. said : " I am not prepared to say, if a Phillips, 9 Ibid. 98; Foster v. White, trustee make a full and fair disclosure of Ibid. 221 ; Johns v. Field, 5 Alabama, all the facts within his knowledge, and 484; Cray ton v. Clark, 11 Ibid. 787; use all reasonable exertions to preserve Smoot V. Eslava, 23 Ibid. 659 ; Stockton the rights of an absent assignee, that a V. Hall, Hardin, 160; Millikcn i-. Loring, judgment against him shall not be a pro- 37 Maine, 408 ; Bunker v. Gilniore, 40 tection to him against such assignee. But Ibid. 88; Larrabee v. Knight, 69 Ibid, if the trustee make but a partial disclosure, so .320; Casey v. Davis, 100 Mass. 124; that the court have not opportunity to judge of Wardle v. Briggs, 131 Ibid. 518 ; Green- the real merits of the case, and there be any tree v. Rosenstock, 34 New York Supe- indications of collusion between him and the rior Ct. 505; 61 New York, 583; Dawson creditor, the judgment shoidd furnish him no V.Jones, 2 Houston, 412; Tabor r. Van protection whatever." See Marsh «;. Davis, Vranken, 39 IMichigan, 793. In Seward 24 Vermont, 303. [645] § 718 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIU. court held, that the suit on the note, in favor of the indorsee, was a notice to the maker that his note had been transferred ; and that fact having been brought to his knov^ledge before he could have answered under the scire facias, and before an}^ final judg- ment could have been rendered against him, it was his duty to answer, and make known that he had received notice of the transfer of the note ; and not having done so, he could not avail himself of his payment under the judgment nisi, as a bar to the action on the note.^ A similar doctrine was announced in Indiana.^ In Mississippi, the courts have gone very far in requiring gar- nishees to sustain the rights of assignees. It was there held, that the garnishee, even after execution issued against him, upon learning that the debt attached in his hands had been assigned previous to the garnishment, is bound to protect himself against the execution by a bill of interpleader; and that if he fail to do so, and satisfy the judgment, it will be in his own wrong, and constitute no valid defence to the claim of the assignee.^ But afterwards, when one against whom judgment had been rendered as garnishee, and also as defendant in a suit by the assignee of the debt, filed a bill of interpleader against both the plaintiffs, the same court held, that it would not lie, and left the j^arti/ to pat/ his debt tivice^ § 718. It is the duty, not less than the interest, of an assignee of a chose in action, to put it in the power of the maker to disclose its assignment, in any answer he may have to give as garnishee of the assignor, by notifying him, and exhibiting to him the evi- dence thereof, that he may be able to state the whole matter to the court. It is not to be considered that, in all cases, a failure on the part of the assignee to exhibit to the maker such evidence will defeat or seriously prejudice his claim ; but in any system of practice where the garnishee's liability turns 'altogether on the terms of his answer, and where the effect given to a statement by him of an assignment of the chose in action, in respect of which it is sought to charge him, depends, as in Massachusetts, upon the 1 Johns V. Field, 5 Alabama, 484. See ^ Oldliam v. Ledbetter, 1 Howard Colvin I'. Rich, 3 Porter, 175; Foster y. (Mi.), 4:3. White, 9 Ibid. 221 ; Kimbrougli v. Davis, * YarborouKh v. Thompson, 3 Sraedes 34 Alabama, 583. & Marshall, 2'Jl. ■•^ Smith V. Blatchford, 2 Indiana, 184. [646] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 720 evidence -which the answer affords of the existence and legal efficacy of such assignment, it is indispensable that the assignee should produce to tlie garnishee such evidence of his title as will justify the garnishee in setting out the assignment as an existing fact, and as will support the assignment against the attaching creditor.! Therefore, where A. gave an unnegotiable note to B., and was afterwards summoned as garnishee of B. ; and in his answer disclosed that, since the service of the writ, C. had informed him that the note was his property, and that B. acted as his agent in taking it, but exhibited no evidence of his property in the note ; and A. in his answer did not state his belief that C.'s statement was true, or that the note was C.'s, and he was thereupon charged as garnishee, and satisfied the judgment ; and afterwards was sued by C. on the debt ; it was held, that the judgment against A., as garnishee, was a good defence to the action ; the main ground assumed being that C. had failed to ex- hibit such evidence of his title as would authorize A. to express his belief in its existence and validity .2 § 719. It is still more important that notice of the transfer of a note should be given to the maker, where, as in some States, such transfer takes effect, as regards him, only from the time of such notice ; for if, previous to notice, the maker be subjected to garnishment as a debtor of the payee, and be compelled to pay the amount of the note, the assignee cannot afterwards maintain an action against him. Thus, in Massachusetts, in a suit brought there by the indorsee against the maker of a promissory note, given in Connecticut, by one citizen of that State to another, and there indorsed to a citizen of Massachusetts, — which note was not negotiable by the law of Connecticut ; it was held to be a good defence, that the maker, before he had notice of the in- dorsement, had been summoned as garnishee of the payee, and had paid the amount of the note on an execution issued against him as sarnishee.^ b' § 720. In pleading a recovery against the maker of a note, as garnishee of the payee, it is not necessary that the plea should 1 Wood V. Partridge, 11 Mass. 488; 2 •Wentworth u. Weymouth, 11 Maine, McAllister v. Brooks, 22 Maine, 80. 446. 3 Warren v. Copelin, 4 Metcalf, 594. [647] § 723 WHERE ATTACHMENT IS A DEFENCE. [CHAP XXXVIH. aver, in totidern verbis, that the maker had no notice of the trans- fer of the note, before he answered the garnishment. If he had notice, the plaintiff should reply the fact and establish it.^ § 721. If the garnishment of the maker of a note, and judg- ment against him, and satisfaction of the judgment, before he has notice of its transfer, would be held to bar the right of the holder to recover against the maker, much more will his right be barred where he takes the note with express notice of the pendency of the garnishment.^ § 722. In assumpsit, the recovery and execution in the attach- ment may either be pleaded specially or given in evidence under the general issue ; ^ but in debt on bond it must be pleaded. Care must be taken to plead it properly, for if the defendant fail for want of a proper plea, it is said that the party must pay the money over again, and has no remedy either in law or equity.* § 723. Neither in giving an attachment in evidence under the general issue, nor in pleading it, is the defendant bound to prove that the plaintiff in the attachment had a sufficient cause of ac- tion. For it would oftentimes defeat the whole effect of the at- tachment laws, if the garnishee should, without the means of proving it, be held to such proof.^ This however, is held only in cases where the attachment is laid in the hands of third per- sons; not where the party attaches money in his own hands. In that case, when sued for the debt, the plaintiff may reply that he was not indebted to the defendant, and the defendant will be held to prove the debt.^ 1 Mills V. Stewart, 12 Alabama, DO. ^ McDaniel v. Hughes, 3 East, 367; 2 Glanton v. Griggs, 5 Georgia, 424. Morris r. Ludlara, 2 H. Black. 362. 3 Cook V. Field, 3 Alabama, 53. ^ Sergeant on Attachment, 2d Edi- * Turbill's Case, 1 Saunders, 67, Note tion, 160: Paramore v. Pain, Cro. Eliz. 1; Coates r. Roberts, 4 Rawle, 100. 098; McDaniel v. Hughes, 3 East, 367; Morris v. Ludlam, 2 U. Black. 362. [648] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. 726 CHAPTER XXXIX. ACTION FOE, MALICIOUS ATTACHMENT. § 724. In the chapter on Attachment Bonds,i ^q considered the responsibility of an attachment plaintiff to the defendant, for an attachment which was merely wrongful, and not obtained ma- liciously and without probable cause. We now propose an exam- ination of the recourse of the defendant, upon common-law principles, for an attachment maliciously sued out. § 725. Whether an attachment was wrongfully sued out, can- not be made the subject of inquiry between the parties thereto, except in the attachment suit itself, or in an action brought by the defendant therein against the plaintiff for the wrong. Hence where one whose property had been attached and sold, brought trover for the value thereof against the attaching plaintiff, and it appeared that the attachment was issued conformably to statute, it was held, that it could not be impeached in a collateral way in such an action, on the ground that it was wrongfully sued out.^ § 725 a. In some States the statute authorizes the defendant to set up in the attachment suit a counterclaim for the wrongful issue of the attachment ; but unless thera be such a statute such a defence is inadmissible.^ § 726. It has been uniformly held in this country, that an attachment plaintiff may be subjected to damages for attaching the defendant's property maliciously and without probable cause. The defendant's remedy in this respect is not at all interfered with by the plaintiff's having at the institution of the suit, given a bond, with security, conditioned to pay all damages the defend- ant might sustain by reason of the attachment having been 1 Ante, Ch. VI. ^ Atkins v. Swope, 38 Arkansas, 528. - Rogers v. Pitman, 2 Jones, 56. [649] § 728 ACTION FOE MALICIOUS ATTACHMENT. [CHAP. XXXIX. wrongfully obtained ; ^ nor is he precluded from maintaining Lis action for damages by his having given a delivery bond for the property attached ;^ nor by his having consented to the dismissal of the attachment suit.^ On Che contrary, a dismissal by stipula- tion between the parties, providing that each party should pay his own costs, is such a determination of the action in favor of the defendant as will enable him to maintain an action for mali- cious prosecution.* But, in the absence of any statute conferring the right, the defendant cannot maintain an action against the plaintiff for the mere wrongful suing out of the attachment. Such an action, as we have seen, may be maintained on the at- tachment bond ;^ but, on common-law principles, the element of malice is indispensable to authorize an action on the case.^ § 727. This action cannot be maintained against an attachment plaintiff, on account of an attachment maliciously obtained with- out his knowledge, by an attorney-at-law employed by him to collect a debt ; " but the attorney is liable in such case ; and where he and his client act in concert they are both liable.^ And where a person gave another a carte blanche to use his name as plaintiff in prosecuting suits, without requiring to be informed as to the facts and circumstances of the suit ; the two to share the compensation between them ; he cannot, if a suit is commenced in his name, maliciously and without probable cause, shield him- self from damages on the ground of ignorance, or on the pre- tence that he might have supposed there was a good cause of action.^ § 728. It is no obstacle to the institution and maintenance of this action, that the attachment was obtained in a court within a foreign jurisdiction. The question is, not where the attachment issued, but whether it was justifiable. If issued in a foreign 1 Sanders v. Huglies, 2 Brevard, 495 ; '^ Spaulding v. Wallett, 10 Louisiana Donnell i'. Jones, 13 Alabama, 490 ; Annual, 105. Smitli V. Story, 4 Humphreys, 169 ; Pottit * Kinsey v. Wallace, 3G California, 4G2. V. Mercer, 8 B. Monroe, 51 ; Senecal v. ^ Ante, Ch. VI. Smitli, 9 Robinson (La.), 418 ; Preston u. ^ McKellar v. Couch, 34 Alabama, Cooper, 1 Dillon, 589; Lawrence v. -330 ; Benson y. McCoy, 3(3 Ibid. 710. Hagerman, 50 Illinois, 68 ; Spaids v. Bar- " Kirksey v. Jones, 7 Alabama, 622 ; rett, 57 Ibid. 289. Pollock v. Gantt, 69 Ihid. 373. 2 Alexander v. Jacoby, 23 Ohio State, ^ Wood v. Weir, 5 B. Monroe, 544. 358. 9 Kinsey v. Wallace, 36 California, 462. [050] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 730 State, the forms of the proceeding must be tested by the laws of that State; but if vahd in form, under those laws, the question still remains, whether the plaintiff perverted those forms to the purpose of oppression , and this is for the determination of the court, domestic or foreign, in which it may arise.^ § 729. This action being governed by the principles of the com- mon law applicable to actions for malicious prosecution,^ case, and not trespass vi et ai-mis^ is the proper form of remedy.-^ As a general rule, it will not lie until the attachment shall have ter- minated in favor of the defendant ; * but an omission to aver in the declaration its termination, is cured by verdict.^ If in the attachment suit the defendant has no opportunity to defend, this rule does not apply. This was so held in New York, in a case where the attachment was prosecuted to judgment ex parte, in the absence of the defendant ; ^ and in Ohio, where the attachment was auxiliary to a pending suit, and the statute did not authorize the defendant to contest the truth of the grounds averred by the plaintiff for obtaining the writ.^ § 730. In Alabama, it is not suf3Eicient to aver that the defendant caused and procured an attachment to be wrongfully and mali- ciously and without probable cause sued out against the plaintiff, and that the writ was placed in the hands of a sheriff, and was by him executed. The defendant must be connected by aver- ment with the execution of the process, by delivering the writ to the officer, or participating in his proceedings.^ But in Missouri, this doctrine was not followed. There, the court said : " We are not willing to concede tliat it is necessary to the maintenance of the action that the defendant should in person deliver the writ to the officer, or be present and point out the property and tell 1 Wiley f. Traiwick, 14 Texas, 662. Sonnehorn, 98 United States, 187; Mc- 2 Post, § 732. Crackcn v. Covington C. N. Bank, 4 Fed- 3 Shaver v. White, 6 Munford, 110; eral Reporter, G02. Ivy V. Barnhartt, 10 Missouri, 151 ; ^ K^a v. Lewis, Minor, 382 ; Nolle v. Lovier v. Gilpin, 6 Dana, 321. Thompson, 3 Metcalfe (Ky.), 121 ; Feazle 4 Bump V. Betts, 19 Wendell, 421; r. Simpson, 2 Illinois (1 Scammon), 30; Rea V. Lewis, Minor, 382; Nolle v. Spaids y. Barrett, 57 Ibid. 289. Thompson, 3 Metcalfe (Ky.), 121 ; Feazle 6 Bump v. Betts, 19 Wendell, 421. V. Simpson, 2 Illinois (1 Scammon), 30; ^ portman v. Rottier, 8 Ohio State, Sloan V. McCracken, 7 Lea, 626 ; Pixley 548. V. Reed, 26 ]\Iinnesota, 80; Reynolds v. 8 Marshall y. Betner, 17 Alabama, 832. De Gear, 13 Bradwell, 113; Stewart i;. [651] § 732 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. him what to do. It is the duty of the court to deliver the pro- cess to its executive oflBcer, and it is the duty of that officer to levy the attachment on whatever property may be necessary to satisfy the same. The plaintiff in the suit sets the whole pro- ceeding in motion by making out the affidavit, and if he does the same maliciously, vexatiously, and without probable cause, and injury results from his unlawful and wrongful act, he is liable and must respond in damages. ^ § 730 a. In such an action, before the defendant can be called upon to sustain the truth of the affidavit upon which the attach- ment was issued, the plaintiff must aver in his declaration that the ground taken in the affidavit was false,^ and must give some evidence of its falsity, or of circumstances fi'om which the jury could infer its falsity. His right to recover depends on the vexatious use of the process ; and to make this out, the o7ius is, in the first instance, on him.^ § 731. In such an action a return of the sheriff on the attach- ment, " Qiot executed hy order of the plaintiff^'' does not disprove the fact that an attachment was made. Though given in evi- dence by the plaintiff, he may contradict it, and show by parol proof that the writ was executed.* § 732. The earliest adjudication concerning this action in this country, with which we have met, was in Virginia, in 1803, when it w^as decided that no action could be sustained, unless it appeared that the plaintiff, in attaching the defendant's prop- erty, acted maliciously and without probable cause ; and that it was not sufficient for the declaration to aver that the attachment was " without any legal or justifiable cause ; " but it must allege the want of probable cause.^ This doctrine has since been recog- nized and affirmed in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Illinois, Tennessee, Kentucky, North Carolina, Georgia, Louisiana, and Texas.*' In Virginia, 1 Walser v. Thies, 56 Missouri, 89. * Mott v. Smith, 2 Cranch C. C. 33. 2 Tiller v. Shearer, 20 Alabama, 527; * Young v. Gregorie, 3 Call, 446; King Durr V. Jackson, 59 Ibid. 203; Flournoy v. Montgomery, 50 California, 115. r. Lyon, 70 Ibid. 308. c Lindsay v. Larned, 17 Mass. 190; 8 O'Grady v. Julian, 34 Alabama, 88. Wills v. Noyes, 12 Pick. 324 ; Ives v. See Burrows v. LehndorflT, 8 Iowa, 90. Bartholomew, 9 Conn. 309 ; Bump v. [652] CHAP. XXXIX.] ACTION FOE MALICIOUS ATTACHMENT. § 732 a however, in 1859, it was held, that under the broad and compre- hensive terms of the statute of jeofails of that State, adopted after the first ruling on this subject, as just stated, a declaration charging that the attachment was sued out " wrongfully and without good cause," was good after verdict ; because proof that it was sued out maliciously and without probable cause, would be entirely consistent with the allegation as laid ; and it might well be that the same testimony relied on to establish the latter would furnish sufficient proof of the former.^ And in Illinois, while it was recoguized.that the averment of the want of proba- ble cause is of the gist of the action, it was considered that the words " without any reasonable or probable cause" are not indis- pensable in the declaration, provided language be used having the same meaning, and the want of probable cause be included in the sense of the declaration.^ § 732 a. The essential ground is, that the proceedings com- plained of were had without probable cause ; inasmuch as, from the want of such cause, the other main ingredient, malice, may be, and most commonly is, implied ; ^ while from the proof of even express malice the want of probable cause cannot be inferred. It is, therefore, important to determine what is probable cause. It is not referable to the state of facts actually existing when the attachment suit was brought, without regard to whether the plaintiff therein knew of those facts, and based his proceedings upon them ; for, in the language of the Court of Appeals of Vir- ginia, that " would be in effect to allow a party sued for a mali- cious prosecution to say to the plaintiff, by way of defence, ' It is true you are innocent of the offence with which you were charged, and at the time of instituting the prosecution I knew of no circumstances to justify me in believing you to be guilty, and did not so believe; but I have since ascertained that there existed Betts, 19 Wendell, 421; Boon v. Maul, Texas, 662; Sledge f. McLaren, 29 Geor- Pennington, 2d Ed. 631; McCullough i'. gia, 64 ; Accessory Transit Co. v. McCer- Grishobber, 4 Watts & Sergeant, 201; ren, 13 Louisiana Annual, 214 ; Mitchell!;. Tomlinson v. Warner, 9 Ohio, 103; Fort- Mattingly, 1 Metcalfe (Ky.), 237; Wood man v. Rottier, 8 Ohio State, 548 ; Law- v. Weir, 5 B. Monroe, 544. rence v. Hagerraan, oG Illinois, 68 ; Spaids ^ Spengler v. Davy, 15 Grattan, 381. V. Barrett, 57 Ibid. 289 ; Smith v. Story, ^ Spaids v. Barrett, 57 Illinois, 289. 4 Humphreys, 169 ; Williams v. Hunter, ^ Walser v. Thies, 56 Missouri, 89 ; 3 Hawks, 54"5 ; Senecal v. Smith, 9 Rob- HolUday v. Sterling, 02 Ibid. 321. inson (La.), 418; TViley i-. Traiwick, 14 [653] § 704 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. at the time certain facts and circumstances, which, had they been then known to me, would have warranted rae in believing you guilty.' " Probable cause is, therefore, to be referred to the justifiable belief of the party, based on a knowledge, at the time, of facts and circumstances justifying that belief ; or, in others words, it is, substantially, belief founded on reasonable grounds.^ § 733. The malice necessary to support this action is any improper motive. It need not imply malignity, nor even corrup- tion, in the appropriate sense of those terms. That which is done contrary to one's own conviction of duty, or with a wilful disregard of the rights of others, whether it be to compass some unlawful end, or some lawful end by unlawful means, or to do a wrong and unlawful act, knowing it to be such, constitutes legal malice.2 If, for instance, a person commence an action by attach- ing the goods of the defendant, knowing that he has no cause of action, he is considered to have intended to vex, harass, and injure him ; and this is sufficient evidence of malice.^ So, though he have a cause of action, if he allege, as a ground for obtaining the attachment, that which he knows to be false, it is express malice.* But the malice must be against the defendant : if it be directed against a third person, it will not authorize the recovery by the defendant of vindictive damages. 5 § 734. In Massachusetts, the action cannot be sustained, unless the evidence be satisfactory that the plaintiff knew, when he com- menced his action by attachment, that he had no cause of action, and that he acted maliciously in that behalf. Therefore, where the declaration alleged that the attachment plaintiff knew he had no lawful cause of action against the defendant when the action 1 Spenglcr v. Davy, 15 Grattan, 381. 3 lypg j,. Bnrtliolomew, 9 Conn. .309; In Illinois probable cause was defined to Alexander v. Harrison, 38 Missouri, 258. be " a reasonable ground of suspicion, In Alabama it was lield, that the obtain- supporfed by circumstances sufficiently ing by the attachment plaintiff of a sec- strong in themselves to warrant a cau- ond attachment, a week after that on tious man in the belief that the person account of which the action for malicious accused is guilty of the offence charged." attachment is brought, might be given in Barrett v. Spaids, 70 Illinois, 408. evidence on the question of malice. Kyall 2 Wills I'. Noyes, 12 Tick. 324 ; Cul- v. Marx, 50 Alabama, 31. bertson v. Cabccn, 29 Texas, 247; Durr * Tomlinson v. Warner, 9 Ohio, 10.3. V. Jackson, 69 Alabama, 203; Nordhaus 5 Wood v. Barker, 37 Alabama, 60; 1 V. Peterson, 54 Iowa, 68. Shepherd's Select Cases, 311. [654] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 736 W attachment was commenced, and that he acted maliciously in commencing it without any just cause, and also in attaching and detaining plaintiff's property ; it was held, that the declaration was not supported by evidence that he had attached the prop- erty under a belief that he had a good cause of action, and then maliciously detained it after he had learned that the suit was groundless.^ § 735. In New Jersey, it was held, that an action for malicious attachment would lie, where the attachment was sued out of a court having no jurisdiction ; and that in the declaration it was not necessary to aver that the defendant hiew that the court had not jurisdiction. And the court refused to allow the cause of action for which the attachment was obtained to be shown in evidence.^ § 736. The doctrine intimated in the last-cited case in INIassa- chusetts, that the plaintiff's belief of his having a cause of action will protect him from an action for malicious prosecution, has been distinctly recognized and announced in other States, in relation to the grounds on which the attachment is sued out, as distinct from the question of the existence of a cause of action. In North Carolina, it was decided that the plaintiff's belief, caused b}^ the defendant's conduct, that the defendant, as alleged in the affidavit, had absconded, was sufficient to protect the plaintiff from this action, although in fact the defendant had not absconded.^ So, in Pennsylvania it was held, that the question was not whether the attachment defendant had really absconded, but whether his conduct was such as to justify the plaintiff's apprehensions, and to make recourse to the attachment a measure of reasonable precaution.* So, in Tennessee, where the plaintiff sued out an attachment on the ground that the defendant was a non-resident of the State, when it appeared that, though he had been two years absent from the State, and had avowed his intention to remove, yet he had not in fact changed his domicile ; and the attachment was dismissed ; and the defendant brought his action against the plaintiff for damages ; 1 Stone V. Swift, 4 Pick. 389. See Alex- ^ Williams v. Hunter, 3 Hawks, 545. ander v. Harrison, 38 Missouri, 258. ^ McCuUough v. Grishobber, 4 Watts - Boon V. Maul, Pennington, 2d Ed. & Sergeant, 201. 631. [655] § 738 ACTIO]^ FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. it was held, that a recovery could not be had merely on the ground that the attachment had been obtained when it ought not to have been, but that the probable cause given by the defendant must be taken into consideration as a defence.^ § 737. But though the plaintiff's belief may protect him from an action for malicious prosecution, the question still arises, as to what will justify such a belief. In reference to the cause of action it may be easy to show the grounds of the belief; but per- haps not so, in regard to the special ground laid for obtaining the attachment. In such case it has been considered that mere representations made to the plaintiff by third parties, that the defendant was about to abscond, without any evidence that the charge was true, or that the plaintiff had any reason to believe it true, or made any inquiry into the matter, were no ground of defence to him when sued for malicious prosecution.^ § 738. In Alabama, where, as we have seen,'^ actual damage for a merely wrongful attachment may be recovered, when no malice existed or is averred, the plaintiff's belief of the existence of a cause of action, or of facts authorizing the issue of an attach- ment, may be given in evidence to repel the presumption of malice, and thereby prevent the recovery of exemplary or vindic- tive damages ; * and the declarations which the plaintiff made at the time the attachment was issued, as to his reasons for having it issued, may be given in evidence as a part of the res gestce.^ And so, in Louisiana, it was considered that if it was apparent that the plaintiff in the attachment had a sufficient or very prob- able cause of action, and was prevented from gaining a judgment by some technical objection, or irregularity in the proceedings, which could not be. foreseen, the probabilit}^ and justice of the demand might be pleaded, and given in evidence in mitigation of a claim for vindictive damages.^ These cases are equivalent to a recognition of the common- law principle we have been considering ; for it is admitted that the plaintiff's belief, on proper grounds, would be suflScient to 1 Smith V. Story, 4 irumphreys, 169. » Wood v. Barker, 37 Alabama, 60; 2 Sclirimpf v. McArdle, 13 Texas, 368. 1 Shepherd's Sel. Cases, 311 ; Dotliard v. » Ante, § 167. Sheid, 69 Ahibama, 135. * Donnell v. Jones, 13 Alabama, 490; ^ Cox v. Robinson, 2 Robinson (La.), White V. Wylev, 17 Ibid. 1G7. 313. [656] CHAP. XXXIX.] ACTION FOE MALICIOUS ATTACHMENT. § 741 protect him from a recovery of those damages which, but for peculiar statutes, would be authorized by the common law, and could be recovered only on common-law grounds. § 739. In the cases cited, in which the probable cause for the attachment is inquired into as a bar to the action, it will be found that no opportunity existed to investigate and determine that point in the attachment suit.. Where, as in some States, the attachment defendant may preliminarily controvert and disprove the truth of the affidavit on which the attachment issued, that point could not properly become the subject of investigation in the action for malicious prosecution. For if the truth of the affidavit was tried in the attachment suit, and determined against the plaintiff there, the matter would be res judicata, and of course he could not, when sued by the defendant, set up the truth of the affidavit as a defence.^ On the other hand, the attachment defendant, if the affidavit should have been found to be true, would be equally precluded, in the action for malicious prosecution, from contesting that point ; or if he failed to put it in issue in the attachment suit, it would be an admission of the allegation in the affidavit, which he could not afterwards retract or deny. § 740. But even where this course may be pursued, it has been held, that an appearance to the attachment, entering special bail, and confessing judgment for only a jjart of the sum demanded, is not a waiver of the injury ; for, said the court, " the defendant had no alternative but to enter special- bail or see his property sacrificed for what was in fact not due. An appearance thus extorted, is surely not an admission that the means employed were legal ; and a creditor cannot compel the payment, even of a just debt, by illegal means." ^ § 741. In a suit for wrongfully and vexatiously suing out an attachment, on the ground of an intended departure of the debtor from the State, it is not admissible for the defendant to give in evidence, as proof of probable cause, declarations of the debtor made a few days before the issue of the attachment, which, when 1 Hayden v. Sample, 10 Missouri, 215. 2 Foster v. Sweeny, 14 Sergeant & Rawle, 386. 42 [657] § 742 a ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. it was issued, had not come to the knowledge of the attachment plaintiff. Declarations accompanying an act of a party, from which act an inference is sought to be drawn prejudicial to him, are admissible in evidence, as characterizing the act, and as explanatory of the intention with which it was done. But, to form a part of the res gestce, such declarations must be made at the time the act they are supposed to characterize was done, and must be calculated to elucidate and unfold the nature and quality of the facts they were intended to explain, and so to harmonize with those facts as obviously to constitute one trans- action. Declarations not of this character, whether made before or after the act with which it is sought to connect them, are not part of the res gestae, but independent facts, and are not admissible in evidence.-' § 742. In such a case as that stated in the previous section, it is equally inadmissible for the plaintiff to rebut the evidence of probable cause, by proof that it was generally reputed in the neighborhood in which he lived that he was going abroad on a temporary "visit, and would shortly return.^ § 742 a. As neither indebtedness, pecuniary embarrassment, nor insolvency is per se a ground for attachment, so neither can justify the wrongful suing out of an attachment, or mitigate the offence of malice in obtaining ir. The pecuniary condition of the defendant is only admissible in evidence on a trial of an ac- tion for malicious attachment, when it contributes to support some proposition wliich becomes material on the trial. Thus, where evidence was given of a sale by the attachment defendant of property at " a low down price ; " and further evidence was given that the defendant, not long before the attachment issued, admitted " that he was involved," and " that he was broke ; " it was held, that this evidence was clearly pertinent to the question of the bona fides of the sale ; though standing alone, it would be inadmissible in justification or mitigation of the offence of malice.^ And the insolvency of the attachment defendant may be given in evidence as a circumstance to be considered by the jury in 1 Ilavis V. Taylor, 13 Alabama, 324. 8 Lockhart v. Woods, 38 Alabama, G31. 2 Pitts V. Burrouglis, G Alabama, 703 ; Havis V. Tavlor, 13'lbid. 324. [658] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 743 ascertaining the damage lie had sustained by his credit being injured.^ § 743, It has been decided in Alabama, that the attachment plaintiff, when sued for malicious prosecution, is not confined, in his defence, to showing that the facts on which he sued out the attachment existed and amounted to a probable cause ; but he may show that other causes existed, for which, under the stat- ute, the attachment might have issued. For instance, where the ground on which the attachment was obtained was, that the de- fendant was about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for ; it was held, in the action for malicious prosecution, that the question was, not whether the precise ground stated in the affidavit was true, but whether the attachment was wrongfully or vexatiously sued out ; and that it was a complete defence, if the attachment plaintiff could show that an}' one of the causes existed which would have warranted him in resorting to the process ; for instance, that the defendant was about to remove his property out of the State, with intent to avoid the payment of the debt upon which the attachment was founded. ^ In the same State, it was also inti- mated, that it might be shown to the jury, to repel the presump- tion of malice, that the plaintiff was indebted to the defendant in another State, and ran away from there with his property to avoid the payment of his debts.^ And it was there decided, that while it was inadmissible for the defendant to prove that, when he sued out his attachment, there was another attachment in the hands of the sheriff against the same party, yet he might prove that another attachment had been issued, and his knowledge of that fact, previous to the issuing of his attachment, as tending to rebut the presumption of malice in him.'* And so he may i> show in evidence that the attachment was taken out under ad- :;^ vice of counsel ; which is good to rebut the idea of malice, but \^ not as a justification.^ 1 Donnell v. Jones, 13 Alabama, 490. * Yarborough v. Hudson, 19 Alabama, See Mayfield v. Cotton, 21 Texas, 1. 653; Goldsmith v. Picard, 27 Ibid. 142; 2 Kirksey v. Jones, 7 Alabama, 622 ; Lockhart v. Woods, 38 Ibid. 681. Lockhart v. Woods, 38 Ibid. 631. ^ Raver r. Webster, 3 Iowa, 502 ; Stone 3 Melton V. Troutman, 15 Alabama, v. Swift, 4 Pick. 389 ; Alexander i'. Har- 535. rison, 38 Missouri, 258. (s '^ %u 3 7 • 7l Oo X^], [659] § 745 ACTION FOE, MALICIOUS ATTACHMENT. [CHAP. XXXIX. § 744. When, in the attachment suit, the plaintiff shall have recovered judgment, it is, until reyersed, conclusive of probable cause, so far as indebtedness enters into that question ; and in the action for malicious attachment there can be no re-examination of that point.i Not so, however, when the judgment in the attachment suit was for the defendant. There, the attachment plaintiff, when sued for malicious attachment, may, in order to show probable cause, give evidence to prove that there was a debt, though he failed to recover on it. The question is not whether a demand shall be recovered, upon which a jury has before passed, and the court, upon their verdict, has considered ought not to be recovered ; but whether the attachment plaintiff had probable cause for instituting the proceeding, and, if he had not, whether he was influenced by malice. Any evidence, then, which goes to establish the existence of the demand at the time the attachment was issued, tends to prove probable cause, and to rebut the presumption of malice which would arise from the dis- charge of the defendant in the attachment suit.^ § 745. The rules as to damages, applicable in other cases of malicious prosecution, apply to actions for malicious attachment. Those rules are thus expressed by Mr. Greenleaf : " Whether the plaintiff has been prosecuted by indictment, or by civil proceed- ings, the principle of awarding damages is the same ; and he is entitled to indemnity for the peril occasioned him in regard to his life and liberty, for the injury to his reputation, his feelings, and his person, and for all the expenses to which he necessarily has been subjected. And if no evidence is given of particular damages, yet the jury are not therefore obliged to find nominal damages only. Where the prosecution was by suit at common law, no damages will be given for the ordinary taxable costs, if they were recovered in that action ; but if there was a malicious arrest, or the suit was malicious and without probable cause, the extraordinary costs, as between attorney and client, as well as all other expenses necessarily incurred in defence, are to be taken into the estimate of damages." ^ 1 Jones V. Kirksey, 10 Alabama, 839 ; ^2 Greenleaf on Evidence, § 456. See Durr V. Jackson, 59 Ibid. 203. Walser v. Thies, 56 Missouri, 89. ■^ Marshall v. Betner, 17 Alabama, 832. See Gaddis v. Lord, 10 Iowa, 141. [660] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 745 In Alabama it was held, that fees paid to counsel for defend- ing the original suit, if reasonable and necessarily incurred, might be proven and taken into consideration by the jury in the assess- ment of damages ;i and that injuries to the credit and business of a merchant, resulting from taking out an attachment against him on the ground of fraud, might legitimately be averred and proved.2 And so in Illinois.^ But where, in such a case, a wit- ness was asked " what was the usual profit made by such estab- lishments in the neighborhood of the plaintiff, in the same kind of business," the question was held inadmissible, because such testimony could furnish no reliable data for determining the loss sustained by the plaintiff; while its tendency was to multiply the issues before the jury almost indefinitely.* 1 Marshall v. Betner, 17 Alabama, 832. ^ Lawrence v. Hagerman, 56 Illinois, 68. 2 Goldsmith v. Picard, 27 Alabama, * O'Grady v. Julian, 34 Alabama, 88. 142; O'Grady v. Julian, 34 Ibid. 88; Flournoy v. Lyon, 70 Ibid. 308. [661] APPENDIX. THE LEADING STATUTORY PROVISIONS OF THE SEVERAL STATES AND TERRITORIES OF THE UNITED STATES, IN RELATION TO SUITS BY ATTACHMENT. ALABAMA. Attachments may issue — I. To enforce the collection of a debt, whether it be due or not at the time the attachment is taken out: II. For any moneyed demand the amount of which can be certainly ascertained: III. To recover damages for a breach of contract, when the damages are not certain and liqui- dated : IV. When the action sounds in damages merely. The following are the grounds upon which an attachment may be obtained: — 1. When the defendant resides out of the State; or, 2. Absconds; or, 3. Secretes himself so that the ordinaiy process of law cannot be served on him; or, 4. Is about to remove out of the State : or, 5. Is about to remove his property out of the State, so that the plaintiff will probably lose his debt, or have to sue for it in another State ; or, 6. Is about fraudulently to dispose of his property; or, 7. Has fraudulently disposed of his property ; or, 8. Has money, property, or effects, liable to satisfy his debts, which he fraudulently withholds. In cases where the cause of action comes under either of the first two classes above named, the plaintiff, his agent or attorney, must make affidavit of the amount of the debt or demand, and that it is justly due; and that one of the enumerated grounds of attachment exists; and that the attachment is not sued out for the purpose of vexing or harassing the defendant. In cases where the cause of action comes under either of the last two classes above named, the plaintiff, his agent or attorney, in addition to the affidavit required in other cases, must make affidavit of the special facts and circumstances, so as to enable the officer granting the writ to determine the amount for which a levy must be made. Before the writ issues, the plaintiff, his agent or attorney, must execute a bond in double the amount claimed to be due, with sufficient surety, payable 664 APPENDIX. to the defendant, with condition that the plaintiff will prosecute the attachment to effect, and pay the defendant all such damages as he may sustain from the wrongful or vexatious suing out the attachment. A non-resident of this State may sue out an attachment against a non- resident for an existing debt, or ascertained liability; but the plaintiff, his aoent or attorney, must, in addition to the oath in other cases, swear that, according to the best of his knowledge, information, and belief, the defendant has not sufficient property within the State of his residence, wheref rom to satisfy the debt ; and must also give bond as in other cases, with surety resident iu this State. Attachment may issue against a foreign corporation for the recovery of debts, or to recover damages for a breach of contract when the damages are not cer- tain or liquidated, or in cases where the action sounds in damages merely, in the same manner and subject to the same rules as in cases of non-residents. Attachments are levied on real and personal estate, and under them garnishees are summoned, who must answer under oath.^ ARKANSAS. The plaintiff in a civil action may, at or after the commencement thereof, have an attachment against the property of the defendant, in the cases and upon the grounds hereinafter stated. I. In an action for the recovery of money, where the action is against — 1. A defendant who is a foreign corporation, or a non-resident of the State ; or, 2. Who has been absent therefrom four months ; or, 3. Has departed from this State, with intent to defraud his creditors ; or, 4. Has left the county of his residence to avoid the service of a summons ; or, 5. So conceals himself that a summons cannot be served upon him ; or, 6. Is about to remove or has removed his property, or a material part thereof, out of this State, not leaving enough therein to satisfy the plaintiff's claim, or the claim of the defendant's creditors ; or, 7. Has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder or delay his creditors ; or, 8. Is about to sell, convey, or otherwise dispose of his property, with such intent. An attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of this State, for any claim other than a debt or demand arising upon contract. II. An attachment may be issued against the property of a defendant in an action to recover possession of personal property, where it has been ordered to be delivered to the plaintiff, and where the property, or part thereof, has been disposed of, concealed, or removed, so that the order for its delivery cannot be executed by the officer. An order of attachment is made by the clerk of the court in which the action 1 Code of Alabama, 1876. APPENDIX. 665 is brought for the recovery of money, where there is filed in his office an affi- davit of the ]3laintiif, or some one in his behalf, showing — 1. The nature of the plaintiff's claim : 2. That it is just : 3. The amount which the affiant believes the plaintiff ought to recover : and, 4. The existence in the action of some one of the grounds for an attachment above enumerated under the first subdivision, and in the case mentioned in the second subdivision, where it is shown by such affidavit, or by the return of the sheriff or other officer upon the order for the delivery of the property claimed, that the facts mentioned in that subdivision exist. "^Mien the return by the proper officer, upon a summons against a defendant, states that he has left the county to avoid the service of the summons, or has concealed himself therein for that purpose, it shall be equivalent to the state- ment of fact in the affidavit. An order of attachment cannot be issued until there has been executed in his office, by one or more sufficient sureties of the plaintiff, a bond to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order is wrongfully obtained. In an action brought by a creditor against his debtor, the plaintiff may, be- fore his claim is due, have an attachment against the property of the debtor, ■where — 1. He has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts ; or, 2. Is about to make such fraudulent sale, conveyance, or disposition of his property, with such intent ; or, 3. Is about to remove his property, or a material part thereof, out of this State, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts. The attachment authorized to be issued where the demand is not yet due may not be granted by the clerk, but by the court in which the action is brought, or by the judge thereof, or any judge of the Supreme Court, or cir- cuit judge, in vacation, where the complaint, verified by the oath of the plain- tiff, shows any of the grounds for attachment last enumerated, and the nature and amount of the plaintiff's claim, and when it will become due. An order of attachment binds the defendant's property in the county which might be seized under an execution against him, from the time of the delivery of the order to the sheriff, in the same manner as an execution would bind it; and the lien to the plaintiff' is completed upon any property or demand of the defendant, by executing the order upon it. Under an order of attachment, all real and personal property, including stock in coi-porations, may be attached ; and garnishees may be summoned, and compelled to answer. Wherever, in a civil action, the plaintiff shall have reason to believe that any other person is indebted to the defendant, or has in liis hands or posses- sion goods and chattels, moneys, credits, and effects, belonging to such de- fendant, the plaintiff may sue out a writ of garnishment, setting forth his cause of action against the defendant, and commanding the officer to summon 666 APPENDIX. the person therein named as garnishee, to appear at the return day of the sum- mons in the action, if the writ shall have been issued at tlie commencement thereof; and if not so issued on such day as the court shall designate, to answer what goods, chattels, moneys, credits, and effects he may have in his hands, belonging to such defendant; and in all such actions, where the plain- tiff shall have obtained judgment, he may sue out a writ of garnishment, set- ting forth such judgment, and shall proceed in the manner herein directed for the enforcement and collection thereof. The plaintiffs in all cases of garnish- ment may also have an attachment against the property of a garnishee who is made a defendant thereto, by stating in his affidavit some one or more of the grounds of attachment above mentioned, and the amount which the garnishee is indebted to the principal debtor, and executing bond to said garnishee.^ CALIFORNIA. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant gives security to pay such judgment, in the following cases: — I. In an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this State, and is not secured by any mortgage or lien, upon real or personal property, or any pledge of personal property; or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the secm'ity was given, become valueless. II. In an action upon a contract, express or implied, against a defendant not residing in this State. The clerk of the court issues the writ of attachment upon receiving an affi- davit by, or on behalf of, the plaintiff, showing — 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, over and above all legal set-offs and counter-claims), upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this State, and that the payment of the same has not been secured by any mortgage, lien, or pledge upon real or per- sonal property; or, if originally so secured, that such security has, without any act of tlie plaintiff, or the person to whom the security was given, become valueless; or, 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of the State; and 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. Before issuing the writ, the clerk shall require a written undertaking on the part of the j^laintiff, in a sum not less than two hundred dollars, and not ex- ceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that, if the defendant recover judgment, the plaintiff will pay all costs 1 Gantt's Arkansas Digest, 1874. APPENDIX. 667 that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the under- taking. Under the writ, all descriptions of property may be attached, including rights or shares which the defendant may have in the stock of any corporation or company, and all debts due the defendant; and garnishees may be sum- moned and charged, not only on account of their o\N-n debt to the defendant, but on account of credits in their hands belonging to him.^ COLORADO. The plaintiff, at the time of issuing the summons in an action on contract, express or implied, or at any time afterwards before judgment, may obtain an attachment against the property of the defendant, unless the defendant give good and sufficient secmity to secure the payment of such judgment. The plaintiff, his agent or attorney, or some credible person for him, must make affidavit that the defendant is indebted to him; stating the nature and amount of the indebtedness, as near as may be, and alleging any one or more of the following causes for attachment ; viz. , — 1. That the defendant is not a resident of this State ; or, 2. Is a foreign corporation ; or, 3. Is a corporation whose chief office or place of business i§ out of the State; or, 4. Conceals himself, or stands in defiance of an officer, so that process of law cannot be served upon him; or has for more than four months been absent from the State; or that, for such length of time, his whereabouts has been unknown, and that the indebtedness mentioned in the affidavit has been due durjng all that period; or, 5. Is about to remove his property or effects, or a material part thereof, out of this State, with intent to defraud or hinder or delay his creditors, or some one or more of them ; or, 6. Has fraudulently conveyed or transferred or assigned his property or effects, so as to hinder or delay his creditors, or some one or more of them; or, 7. Has fraudulently concealed or removed or disposed of his property or effects, so as to hinder or delay his creditors, or some one or more of them; or, 8. Is about fraudulently to convey or transfer or assign his property or effects, so as to hinder or delay his creditors, or some one or more of them ; or, 9. Is about fraudulently to conceal or remove or dispose of his property or effects, so as to hinder or delay his creditors; or that he has departed, or is about to depart, from this State, with the intention of having his effects removed from this State ; or, 10. Has failed or refused to pay the price or value of any work or labor done or performed, or for any services rendered by the plaintiff, at the in- 1 2 Hittell's Codes and Statutes of California, 1876. 668 APPENDIX. stance of the defendant, and which should have been paid at the completion of such work, or when such services were fully rendered ; or, 11. Fraudulently contracted the debt, or fraudulently incurred the liability, respecting which the suit is brought, or by false representations or false pre- tences, or by any fraudulent conduct, procured money or property of the plaintiff. Before issuing the wi'it the plaintiff must file a written undertaking, with sufficient sureties, to be approved by the clerk, in a sum not less than double the amount claimed, to the effect that if the defendant recover judg- ment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by reason of the wrongful suing out of the attachment, not exceeding the sum specified in the undertaking. Attachment may be obtained on a debt not due in any of the cases above stated, except the first three. Eights or shares of the defendant in the stock of any corporation or com- pany, with the interests and profits thereon, and all debts due the defendant, and all other property, not exempt from execution, may be attached; and garnishees may be summoned, and examined on oath; and the defendant may also be required to attend for the purpose of giving information respecting his property, and may be examined cm oath.^ CONNECTICUT. The process in civil actions in this State is by summons or attachment. Attachment may be granted against the estate of the defendant both real and personal, and, for want thereof, against his body, in actions at law, when not exempt from imprisonment on the execution in the suit. If the plaintiff be not an inhabitant of this State, or if it do not appear to the authority signing the process that he is able to pay the costs of the action should judgment be rendered against him, sufficient bonds must be given before such pi'ocess is issued, conditioned to prosecute his action to effect, and answer all damages, if he make not his plea good. Attachments hold until the suit is discharged or the execution is levied, provided the execution is levied within sixty days after final judgment when personal property is attached, and within four months when real estate is concerned. Whenever the goods or effects of a debtor are concealed in the hands of his attorney, agent, factor, or trustee, so that they cannot be found to be attached, or where debts are due from any person to a debtor, any creditor may bring his action against such debtor, and insert in his writ a direction to the officer to leave a true and attested copy thereof, at least fourteen days before the session of the court to which it is returnable, with such debtor's attorney, agent, factor, trustee, or debtor, or at the place of his or their usual abode; and it shall be the duty of the officer serving such writ to leave a copy thereof according 1 Colorado Code of Civil Procedure, 1877. APPENDIX. 66^ to such direction ; and, from the time of leaving such copy, all the goods and effects in the hands of such attorney, agent, factor, or trustee, and any debt due from such debtor to the defendant shall be secured in his hands, to pay such judgment as the plaintiff shall recover, and may not otherwise be disposed of, by such attorney, agent, factor, trustee, or debtor. The garnishee so summoned may be required to appear in court, and answer on oath whether he has any goods or effects of the defendant, or ia indebted to him. Any debt, legacy, or distributive share, due, or which may become due, to any person, from the estate of any deceased person, or from any insolvent estate assigned for the benefit of creditors, may be attached in the hands of the executor, administrator, or tnistee.^ DELAWARE. In this State there are domestic attachments and foreign attachments. Domestic Attachment. A writ of domestic attachment issues against an in- habitant of this State after a return to a summons or capias sued and deliv- ered to the sheriff, ten days before the return thereof, showing that the defendant cannot be found, and proof, satisfactory to the court, of the cause of action; or upon affidavit made by the plaintiff, or some other credible per- son, that the defendant is justly indebted to the plaintiff in a sum exceeding fifty dollars, and has absconded from the place of his usual abode, or gone out of the State, with intent to defraud his creditors or to elude process, as is believed. The writ of attachment commands the officer to attach the defendant by all his goods and chattels, rights and credits, lands and tenements, in whose hands or possession soever the same may be found in his bailiwick; and to summon the defendant's garnishees to appear in court to declare what goods, chattels, rights, credits, moneys, or effects they have in their hands. The attachment is dissolved by the defendant's appearing and putting in special bail, at any time before judgment. On the return of the writ, the court appoints three persons to audit the claims of the defendant's creditors, and to adjust and ascertain all their de- mands, including that of the attachment plaintiff. These auditors give public notice to the defendant's creditors of the time and place of their meetings ; and they investigate any claims presented, in any form they judge best, and may examine any creditor upon oath. On the receipt of the proceeds of sale of the property attached, the auditors calculate and settle the proportions and dividends due the several creditors, allowing to the creditor attaching and prosecuting the same to judgment a double share, or dividend, if such shall not exceed his debt. Creditors failing to present their claims to the auditors, or to make proof thereof, are debarred from receiving any share or dividend in the distribution to be made by the auditors ; and, before any creditor shall receive any divi- dend, he must enter into recognizance, with suretv, to secure the repayment of 1 Revised Statutes of Connecticut, 1875. 670 APPENDIX. the same, if the debtor shall, within one year thereafter, appear in the court, and disprove or avoid the debt upon which the dividend is paid. Foreign Attachment. A writ of foreign attachment issues against any cor- poration, aggregate or sole, not created by, or existing under, the laws of this State, upon affidavit made by the plaintiff, or any other credible person, that the defendant is a corporation not created by or existing under the laws of this State, and is justly indebted to the plaintiff in a sum of money, to be specified in the affidavit, and which shall exceed fifty dollars. And such writ also issues against any person not an inhabitant of this State, after a return to a summons or capias issued and delivered to the sheriff, ten days before the return thereof, showing that the defendant cannot be found, and proof, satis- factory to the court, of the cause of action; or upon affidavit made by the plaintiff, or some other credible person, that the defendant resides out of the State, and is justly indebted to the plaintiff in a sum exceeding fifty dollars. The writ of foreign attachment is framed, directed, executed, and re- turned, and the like proceedings had, as in the case of a domestic attachment, except as to the appointment of auditors and distribution among creditors: for the plaintiff in foreign attachment has the benefit of his own discovery; and, after judgment, may proceed by order of sale, fieri facias, capias ad satwfaciendum, or otherwise, as on other judgments; but, before receiving any sum under such judgment, he must enter into recognizance, with surety, to secure the repayment of the same, as above stated, iu the case of a domestic attachment.^ FLORIDA. In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have an attachment against the defendant's property, upon making affidavit and giving an undertaking. The warrant of attachment is issued by the clerk of the court, whenever it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof, and that the defendant — 1. Is a foreign corporation ; or, 2. Is not a resident of this State ; or, 3. Has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons ; or, 4. Keeps himself concealed therein, with the like intent; or, 5. Has removed, or is about to remove, any of his property from the State, with intent to defraud his creditors; or, 6. Has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with like intent. Before issuing the warrant, a written undertaking must be given on the part of the plaintiff, with sufficient sureties, to the effect that, if the defendant 1 Revised Statutes of Delaware of 1852, as amended. APPENDIX. 671 recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars. The rio-hts or shares which the defendant may have in the stock of any association or corporation, together with the interest and profits thereon and all other property of the defendant, may be attached and levied upon. The execution of the attachment upon any such rights, shares, or any debts or other property incapable of manual delivery to the sheriff, shall be by leav- ing a certified copy of the warrant of attachment with the president, or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or indi\-idual holding such property, with a notice showing the property levied on. The sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been attached; and apply the proceeds to the judgment of the attachment plaintiff. Persons in whose hands property or debts are attached must furnish the sheriff with a certificate describing the same; and, if they refuse to do so, they may be required to appear before the court or judge, and be examined on oatia concerning the same; and obedience to such orders may be enforced by attachment.^ GEORGIA. Attachments may issue upon money demands, whether arising ex contractu or ex delicto, in the following cases: — 1. "When the debtor resides out of the State; or, 2. Is actually removing or about to remove without the limits of the county; or, 3. Absconds ; or, 4. Conceals himself; or, 5. Resists a legal arrest; or, 6. Is causing his property to be removed beyond the limits of the State. Affidavit must be made by the plaintiff, his agent or attorney at law, that the debtor has placed himself in some one of the positions enumerated, and also of the amount of the debt claimed to be due ; and the plaintiff must also give bond, with security, in an amount at least double the debt sworn to, conditioned to pay the defendant all damages that he may sustain, and also all costs tlTat may be incurred by him in consequence of suing out the attach- ment, in the event the plaintiff shall fail to recover in the case. Affidavit having been made and bond given in any case specified above, the officer must issue the writ; but in cases next to be mentioned it is.otherwise. Whenever a debtor has sold or conveyed or concealed his property liable for the payment of his debts , for the purpose of avoiding the payment of the same ; or whenever a debtor shall threaten or prepare so to do, — his creditor may petition the judge of the Superior Court of the circuit where the debtor resides, 1 Bush's Digest of Florida Statutes, 1872. 672 APPENDIX. if qualified to act, and, if not, the judge of any adjoining circuit; fully and distinctly stating his grounds of complaint against the debtor, and praying for an attachment against the debtor's property, supporting his petition by affi- davit, or by testimony if he can control it. The judge may then grant an attachment ; or he may, if he deem it more proper under the circumstances of the case as presented to him, before granting the attachment, appoint a day on which he shall hear the petitioner, and the party against whom the attachment is prayed (providing in bis order for due notice to said party), as to the propriety of granting the attachment. And, if satisfied upon such hearing that the attachment should not issue, he shall not grant it; but, if satisfied that the same should issue, he shall grant it. When a debtor sells or conveys or conceals his property liable for the pay- ment of his debts, for the purpose of avoiding the payment of the same ; or whenever a debtor shall threaten or prepare to do so ; his creditors may petition the judge of the Superior Court, fully and distinctly stating his grounds of complaint against the debtor, and praying for an attachment against the property of the debtor; supporting his petition by affidavit, or testimony, if he can control the same. Attachments may be levied on the defendant's property, real and personal; and garnishees may be summoned and charged, and shares of stock in cor- porations may be attached. When the debt is not due, the debtor is subject to attachment in the same manner and to the same extent as in cases where the debt is due; except that, where the debt does not become due before final judgment, execution upon the judgment shall be stayed until the debt is due. Attachment may issue against an administrator or executor, when he shall be actually removing or about to remove the property of the deceased without the limits of the county. A surety or indorser upon an instrument of writing may take out an attach- ment against his principal, if the principal shall become subject to attachment by placing himself in someone of the positions above enumerated; and the money raised by the attachment shall be paid to the person holding such instrument of writing, unless the surety or indorser has paid the debt, when the money or so much as will repay him shall go to him. An attachment may issue in behalf of a creditor against a debtor, where the debt is for property purchased by the latter from the former, and not paid for, and where the debt has become due, and the property is in the possession of the debtor. To obtain an attachment in such case, the creditor, his agent, or attorney at law, must make affidavit, before some person authorized by law to issue attach- ments, that the debtor has placed himself in the position mentioned in this act, and also stating the amount claimed to be due, and also describing the prop- erty for which the debt was created. Bond must be given as in other cases of attachment. The attachment issued under this act can be levied only on the property described in the affidavit.^ 1 Codeof Georgin, 1882. APPENDIX. 673 ILLINOIS. In any court of record having competent jurisdiction, a creditor may have an attachment against the property of his debtor, -when the indebtedness ex- ceeds twenty dollars, in any one of the following cases : — 1. Where the debtor is not a resident of this State; or, 2. Conceals himself, or stands in defiance of an officer, so that process can- not be served upon him ; or 3. Has departed from this State with the intention of having his effects removed from this State ; or, 4. Is about to depart from this State with the intention of having his effects removed from this State ; or, 5. Is about to remove his property from this State, to the injury of such creditor; or, 6. Has, within two years preceding the filing of the afiidavit required, fraudulently conveyed or assigned his effects, or a part thereof, so as to hinder or delay his creditors; or, 7. Has, within two years prior to the filing of such affidavit, fraudulently concealed or disposed of his property, so as to hinder or delay his credi- tors; or, 8. Is about fraudulently to conceal, assign, or otherwise dispose of his prop- erty or effects, so as to hinder or delay his creditors ; or, 9. Where the debt sued for was fraudulently contracted on the part of the debtor: Prodded, the statements of the debtor, his agent or attorney, which constitute a fraud, shall have been reduced to writing, and his signature attached thereto by himself, agent, or attorney. To obtain an attachment, the plaintiff, his agent or attorney, must make and file with the clerk of the court an affidavit, setting forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, and any one or more of the foregoing causes, and also stating the place of resi- dence of the defendant, if known, and, if not known, that upon diligent inquiry the affiant has not been able to ascertain the same. Before issuing the attachment, the clerk shall take bond and sufficient secu- rity, payable to the defendant, in double the sum sworn to be due, condi- tioned for satisfying all costs which may be awarded to the defendant, or to any others interested in the proceedings, and all damages and costs which shall be recovered against the plaintiff for wrongfully suing out the attachment. Lands, tenements, goods, chattels, rights, credits, moneys, and effects of the debtor, and lands and tenements in and to which the debtor has or may claim any equitable interest or title, may be attached. When the officer is unable to find property of the defendant sufficient to satisfy the attachment, he shall summon the persons mentioned in the writ as garnishees, and all other persons whom the plaintiff shall designate as hav- ing any property, effects, chores, in action, or credits in their possession or power, belonging to the defendant, or who are in any wise indebted to the defendant.^ 1 Cothran'3 Annotated Statutes of Illinois, 1881. 43 674 APPENDIX. INDIANA. The plaintiff, at the commencement of an action, or at any time afterwards, may have an attachment against the property of the defendant in the cases and in the manner following : — Where the action is for the recovery of money. 1. Where the defendant is a foreign corporation, or a non-resident of this State ; or, 2. Is secretly leaving or has left the State, with intent to defraud his creditors ; or, 3. So conceals himself that a summons cannot be served upon him ; or, 4. Is removing or about to remove his property subject to execution, or a material part thereof, out of this State, not leaving enough therein to satisfy the plaintiff's claim; or, 5. Has sold, conveyed, or otherwise disposed of his property subject to exe- cution, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or, 6. Is about to sell, convey, or otherwise dispose of his property subject to execution, with such intent. On any of the second, fourth, fifth, and sixth grounds of attachment the ■writ may issue on a course of action not due. No attachment, except for the causes mentioned in the fourth, fifth, and sixth clauses, shall issue against any debtor while his wife and family remain settled within the county where he usually resided prior to his absence, if he shall not continue absent from the State more than one year after he shall have absented himself, unless an attempt be made to conceal his absence. If the wife or family of the debtor shall refuse or are unable to give an account of the cause of his absence, or of the place where he may be found, or give a false account of either, such refusal, inability, or false account shall be deemed an attempt to conceal his absence. The plaintiff, or some person in his behalf, must make an affidavit showing, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which he believes the plaintiff ought to recover; 4. That there exists in the action some one of the grounds for an attach- ment above enumerated. The plaintiff, or some one in his behalf, must execute a written undertak- ing, with sufficient surety, to be approved by the clerk, payable to the defend- ant, to the effect that the plaintiff will duly prosecute his proceeding in attachment, and will pay all damages which may be sustained by the defend- ant, if the proceedings of the plaintiff shall be wrongful and oppressive. Upon the filing of such affidavit and written undertaking, in tlie office of the clerk, he issues an order of attachment to the sheriff, which binds the defendant's property in the county, and becomes a lien thereon, from the time of its delivery to the sheriff, in the same manner as an execution. Under this order, property, real and personal, is attached, and garnishees are summoned. If, after an order of attachment is placed in the hands of a APPENDIX. 075 sheriff, any property of the defendant's is removed from the county, the sheriff may pursue and attach it in any county within three days after the removal. Estate descended to non-resident heirs or devisees, or vested in non-resident executors or administratoi-s, shall be liable to an attachment for debt or other demands against the decedent's estate. If when an order of attachment issues, or at any time before or afterwards, the plaintiff, or other person in his behalf, shall file with the clerk an affidavit that he has good reason to believe that any named person has property of the defendant of any description in his possession, or under his control, wliich the sheriff cannot attach by virtue of such order ; or that such person is in- debted to the defendant, or has the control or agency of any property, moneys, credits, or effects; or that the defendant has any shares or interest in the stock of any association or corporation; the clerk shall issue a summons notifying such person, corporation, or association to appear and answer as garnishee in the action. Any creditor of the defendant, upon filing his affidavit and written under- taking, as required of the attaching creditor, may, at any time before the final adjustment of the suit, become a party to the action, file his complaint, and prove his claim or demand against the defendant, and may have any person summoned as garnishee or held to bail who has not before been sum- moned or held to bail. The money realized from the attachment and the garnishees shall, under the direction of the court, be paid to the several creditors, in proportion to the amount of their several claims as adjusted.^ IOWA. In a civil action, the plaintiff may cause any property of the defendant which is not exempt from execution to be attached at the commencement, or during the progress, of the proceedings. The grounds for obtaining the attachment are embodied in the petition, setting forth the cause of action, which must be sworn to, and must state, as the affiant verily believes, — 1. That the defendant is a foreign corporation, or acting as such; or, 2. Is a non-resident of the State ; or, 3. Is about to remove his property out of the State, without leaving suffi- cient remaining for the payment of his debts ; or, 4. Has disposed of his property, in whole or in part, with intent to defraud bis creditors; or, 5. Is about to dispose of his property with intent to defraud his credi- tors; or, 6. Has absconded, so that the ordinary process cannot be served upon him; or, 7. Is about to remove permanently out of the county, and has property therein not exempt from execution, and that he refuses to pay or secure the plaintiff; or, 1 Revised Statutes of Indiana, 1881. 676 APPENDIX. 8. Is about to remove permanently out of the State, and refuses to pay or secure the debt due the plaintiff ; or, 9. Is about to remove his property, or a part thereof, out of the county, with intent to defraud his creditors ; or, 10. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors ; or, 11. Has property or rights in action which he conceals; or, 12. That the debt is due for property obtained under false pretences. If the plaintiff's demand is founded on contract, the petition must state that something is due, and as nearly as practicable the amount. If the demand is not founded on contract, the petition must be presented to some judge of the supreme, district, or circuit court, who shall make an al- lowance thereon of the amount in value of the property that may be attached. Property of a debtor may be attached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebted- ness, and when the petition, in addition to that fact, states that the defendant is about to dispose of his property with intent to defraud his creditors ; or that he is about to remove from the State, and refuses to make any arrange- ments for securing the payment of the debt when it falls due, and which con- templated removal was not known to the plaintiff at the time the debt was contracted ; or that the defendant has disposed of his property, in whole or in part, with intent to defraud his creditors ; or that the debt was incurred for property obtained under false pretences. Before a writ can be issued, the plaintiff must file with the clerk a bond, fdr the use of the defendant, with sureties to be approved by the clerk, in a penalty at least double the value of the property sought to be attached, and in no case less than two hundred and fifty dollars in a court of record, nor less than fifty dollars if in a justice's court, conditioned that the plaintiff will pay all damages which the defendant may sustain by reason of the wrongful suing out of the attachment. In an action on such bond, the plaintiff therein may recover, if he shows that the attachment was wrongfully sued out, and that there was no reasonable cause to believe the ground upon which the same was issued to be true, the actual damages sustained and reasonable attoi-ney's fees to be allowed by the court ; and, if it be shown that the attachment was sued out maliciously, he may recover exemplary damages ; nor need he wait until the principal suit is determined before suing on the bond. Stock, or an interest owned by the defendant in any company, and also debts due him, or property of his held by third persons, may be attached. A sheriff or constable may be garnished for money of the defendant in his hands. So may a judgment debtor of the defendant, when the judgment has not been previously assigned ; and also an executor, for money due from the decedent to the defendant.^ KANSAS. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the de- fendant, upon the following grounds : — 1 McClain'a Annotated Statutes of Iowa, 1880. APPENDIX. 677 1. When the defendant is a foreign corporation, or a non-resident of this State ; but no order of attachment shall be issued on these grounds, or either of them, for any claim other than a debt or demand arising upon contract, judgment, or decree, unless the cause of action arose wholly within the limits of this State, which fact must be established on the trial. 2. ^Vhen the defendant has absconded, with the intention to defraud his creditors; or, 3. Has left the county of his residence to avoid the service of a summons ; or, 4. So conceals himself that a summons cannot be ser^-ed upon him ; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his ci'editors ; or, 7. Has property, or rights in action, which he conceals; or, 8. Has assigned, removed, or disposed of, or is about to dispose of, his property, or part thereof, with the intent to defraud, hinder, or delay his creditors; or, 9. Fraudulently contracted the debt, or fraudulently incurred the liability or obligation, for which suit is about to be or has been brought; or, 10. Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female; or, 11. When the debtor has failed to pay the price or value of any article or thing delivered, which, by contract, he was bound to pay upon delivery. An order of attachment is made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit and an undertaking. The affidavit must be made by the plaintiff, his agent or attorney, and show, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which the affiant believes the plaintiff ought to recover; and, 4. The existence of some one of the above grounds for an attachment. The undertaking must be executed by one or more sufficient sureties of the plaintiff, to be approved by the clerk, in a sum not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained; but no undertaking is required where the defendant is a non-resident of the State or a foreign corporation. Under the order of attachment, the officer may attach lands, tenements, goods, chattels, stocks, rights, credits, moneys, and effects. Garnishees may be summoned, upon the plaintiff, his agent or attorney, making oath, in writing, that he has good reason to believe, and does believe, that any person or corporation, to be named, has property of the defendant (describing the same) in his possession, or is indebted to him; and the gar- nishee stands liable, from the time of service of notice upon him, to the plain- tiff, for all property, moneys, and credits in his hands, or due from him to the defendant. The court or judge, in vacation, may appoint a receiver, who shall take pos- 578 APPENDIX. session of all notes, due-bills, books of account, accounts, and all other evi- dences of debt that have been taken by the otficer, and proceed to settle and collect the same. When a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; or is about to make such sale or conveyance or disposition of his property, with such fraudulent intent; or is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts, — a creditor may bring an action on his claim before it is due, and have an attachment against the property of the debtor. In such case the plaintiff, his agent or attorney, must make oath, in writing, showing the nature and amount of the plaintiff's claim, that it is just, when the same will become due, and the existence of some one of the grounds of attachment just mentioned as applicable to this particular case ; and then an attachment may be granted by the court in which the action is brought, or by a judge thereof.^ KENTUCKY. The plaintiff may, at or after the commencement of an action, have an at- tachment against the property of the defendant, in the cases and upon the grounds hereinafter stated, as a security for the satisfaction of such judgment as may be recovered : — I. In an action for the recovery of money where the action is against, — 1. A defendant who is a foreign corporation, or a non-resident of this State; or, 2. Who has been absent therefrom four months ; or, 3. Has departed from this State with intent to defraud his creditors ; or, 4. Has left the county of his residence to avoid the service of a summons ; or, 5. So conceals himself that a summons cannot be served upon him; or, 6. Is about to remove his property, or a material part thereof, out of this State, not leaving enough therein to satisfy the plaintiff's claim, or the claims of defendant's creditors; or 7. Has sold, conveyed, or otherwise disposed of his property, or suffered or permitted it to be sold, with the fraudulent intent to cheat, hinder, or delay his creditors; or, 8. Is about to sell, convey, or otherwise dispose of his property with such intent. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of this State, for any claim other than a debt or demand arising upon contract, express or implied, or a judgment or award. H. In an action for the recovery of money due upon a contract, judgment, or award, if the defendant have no property in this State subject to execution, or not enough to satisfy the plaintiff's demand, and the collection of the ^ Dassler's Compiled Laws of Kansas, 1879. APPENDIX. 679 demand will be endangered by delay iu obtaining judgment or a return of no property found. III. In an action to recover the possession of personal property, which has been ordered to be delivered to the plaintiff, and which property, or part thereof, has been disposed of, concealed, or removed, so that the order for its delivery cannot be executed by the sheriff. An order of attachment is made by the clerk of the court in which the action is brought, in any case mentioned under the first and second heads, upon an affidavit of the plaintiff being filed, showing, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The sum which the afRant believes the i^laintiff ought to recover ; and, 4. The existence in the action of some one of the grounds for an attachment above enumerated under the first and second heads ; and in the case mentioned under the third head, where it is shown by such affidavit, or by the return of the sheriff upon the order for the delivery of the property claimed, and the facts mentioned under that head exist. Where the return by the proper officer upon a summons against a defendant states that lie has left the county to avoid the service of the summons, or has concealed himself therein for that purpose, it is equivalent to the statement of the fact in an affidavit. The order of attachment shall not be issued until there has been executed in the clerk's office, by one or more sufficient sureties of the plaintiff, a bond to the effect that the plaintiff shall i)ay to the defendant all damages which he may sustain by reason of the attachment, if the order is wrongfully obtained, not exceeding double the amount of the plaintiff's claim. An order of attachment binds the defendant's property in the county which might be seized under an execution against him, from the time of the deliveiy of the order to the sheriff, in the same manner as an execution would bind it; and tlie lien of the plaintiff is completed upon any property or demand of the defendant, by executing the order upon it in the manner directed by law. A garnishee may be summoned, and is required to answer on oath. Failing so to answer, the plaintiff may bring suit against him, and in that suit may take an attachment against him on any of the grounds above stated. ^ LOUISIANA. The process of attachment in this State belongs to the class of proceedings known in the Code of Practice as Conservatory Acts which may accompany the demand. An attachment in the hands of third persons is a mandate which a creditor obtains from a competent judge, or a clerk of a court, commanding the seizure of any property, credit, or right belonging to his debtor, in whatever hands it may be found, to satisfy the demand which he intends to bring against him. A creditor may obtain such attachment of the property of his debtor, in the following cases : — , 1 Bullitt's Kentucky Code of Practice, 1876. 680 APPENDIX. 1. When the debtor is about leaving permanently the State, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing judgment against him previous to his departure, or when the debtor has already left the State permanently ; or, 2. Resides out of the State; or, 3. Conceals himself to avoid being cited and forced to answer to the suit intended to be brought against him. A creditor may, in the like manner, obtain a mandate of seizure against all species of property belonging to his debtor, real or personal, whether it consists of credits, or rights of action, and whether it be in the debtor's possession, or in that of third persons, by whatever title the same be held, either as deposit or placed under their custody. The property of a debtor may be attached in the hands of third persons by his creditor, in order to secure the payment of a debt, whatever may be its nature, whether the amount be liquidated or not, provided the term of pay- ment have arrived, and the creditor, his agent or attorney in fact, who prays for the attachment, state expressly and positively the amount which he claims. Where the debt or obligation is not yet due, any judge of competent juris- diction may order a writ of attachment to issue whenever he shall be satisfied by the oath of the creditor or his agent of the existence of the debt, and upon the creditor or his agent swearing that the debtor is about to remove his prop- erty out of the State before the debt becomes due. A creditor wishing to have the property of his debtor attached, must demand it in a petition presented to a competent judge, with a declaration made under oath of the existence of the debt demanded, and that he verily believes that the debtor has left the State permanently, or that he resides out of the State, or conceals himself, so that citation cannot be served on him. In the absence of tlie creditor, the oath may be made by the agent or attorney in fact of the creditor to the best of his knowledge and belief. The creditor, his agent or attorney in fact, praying such attachment, must, besides, annex to his petition his obligation in favor of the defendant, for a sum exceeding by one-half that which he claims, with the surety of one good and solvent person, residing within the jurisdiction of the court to which the petition is presented, as a security for the payment of such damages as the defendant may recover against him in case it should be decided that the attach- ment was wrongfully obtained. If a creditor know or suspect that a third person has in his possession prop- erty belonging to his debtor, or that he is indebted to the debtor, he may make such person a party to the suit, by having him cited to declare on oath what property belonging to the defendant he has in his possession, or in what sum he is indebted to the defendant, even when the term of payment has not yet arrived. The person thus made a party to the suit is termed the garnisliee; and he is required to answer categorically under oath interrogatories propounded to him by the plaintiff. ^ • Fuqua's Louisiana Code of Practice, 1867. APPENDIX. 681 MAINE. All civil actions, except scire facias and other special writs, shall be com- menced by original writs; which may be framed to attach the goods and estate of the defendant, and for want thereof to take the body, or as an original sum- mons with or without an order to attach goods and estate; and in actions against corporations, and in other cases where goods and estate are attached, and the defendant is not liable to arrest, the writ and summons may be com- bined in one. All goods and chattels may be attached and held as security to satisfy the judgment for damages and costs which the plaintiff may recover, except such as, from their nature and situation, have been considered as exempted from attachment according to the principles of the common law as adopted and practised in this State. Shares or interests of a defendant in any incorporated company, and the franchises and right to demand and take toll, and all other property of a corporation, may be attached. All the debtor's estate, interest, or share in real estate, whether held in tail, reversion, remainder, joint tenancy, or in common, for life, years, or other- wise, including an equity of redemption, may be attached. All personal actions, except those of detinue, replevin, actions on the case for malicious prosecution, for slander by writing or speaking, or for assault and battery, may be commenced by trustee process [garnishment]. Service of the writ on the trustee binds all goods, effects, or credits of the defendant, intrusted or deposited in his possession, to respond to the final judgment in the action. Any debt pr legacy, due from an executor or administrator, and any goods, effects, and credits in his hands as such, may be attached by trustee process. ^ MARYLAND. Every person, and every body corporate that has the right to become a plaintift; in any action or proceeding before any judicial tribunal in this State, shall have the right to become a plaintiff in an attachment against a non- resident of this State, or against a person absconding. Every person who does not reside in this State, and every person who ab- sconds, and any corporation not chartered by this State, or any corporation chartered by this State but not having the president or a majority of the directors or managers thereof residing in this State, may be made a defend- ant in attachment. Every person who shall actually run away, abscond, or fly from justice, or secretly remove himself from his place of abode with intention to evade the payment of his just debts, or to injure or defraud his creditors, shall be con- sidered as having absconded. An attachment may also be obtained against a debtor, — 1. When he is about to abscond from the State; or, 2. Has assigned, disposed of, or concealed, or is about to assign, dispose of, 1 Ilevised Statutes of Maine, 1883. 632 APPENDIX. or conceal, bis property, or some portion of it, with intent to defraud his creditors; or, 3. Fraudulently contracted the debt or incui'red the obligation respecting which the action is brought; or, 4. Has removed, or is about to remove, his property, or some portion thereof, out of this State, with intent to defraud his creditors. To obtain an attachment against a non-resident or an absconding debtor, an affidavit must be made that the debtor is bond fide indebted to the plaintiff in a stated sum, over and above all discounts ; and that the affiant knows, or is credibly informed and verily believes, that the debtor is not a citizen of this State, and that he doth not reside therein; or if the debtor resides in this State, that he doth know, or is credibly informed and verily believes, that the debtor has absconded. To obtain an attachment in any of the other cases mentioned, the plaintiff, or some pei'son in his behalf, shall make affidavit before the clerk of the court from which the attachment is to issue, stating that the defendant is bona fide indebted to the plaintiff in a named sum, over and above all discounts, and that the plaintiff knows, or has good reason to believe, that one or other of the causes of attachment specified exists; and at the same time the plaintiff, or some person on his behalf, shall deliver to the clerk a bond to the State of Maryland, with security to be approved by the clerk, in double the sum alleged to be due by the defendant, conditioned that the plaintiff shall prose- cute his suit with effect, or, in case of failure thereof, shall pay and satisfy the defendant all such costs in the suit and all such damages as shaU be awarded against the plaintiff, in any suit which may be brought for wrongfully suing out the attachment. Every attachment issued without a bond and affida\dt taken aforesaid is declared illegal and void, and shall be dismissed. Any kind of property or credits belonging to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached ; and credits may be attached which shall not then be due. A plaintiff having a judgment or decree in any court of law or equity in this State, may, instead of other execution, issue an attachment against the lands, tenements, goods, chattels, and credits of the defendant, in the plaintiff's own hands, or in the hands of any other person.^ MASSACHUSETTS. Original writs may be framed, either to attach the goods or estate of the defendant, and, for want thereof, to take his body; or they may be an original summons, with or without an order to attach the goods or estate. All real and personal estate, liable to be taken on execution (except such personal estate as, from its nature or situation, has been considered as ex- empt according to the principles of the common law as adopted and prac- tisetl in this State), may be attached upon the original writ, in any action in which debt or damages are recoverable. Shares of stock in corporations may 1 Rcvisea Code of Maryland, 1876. APPENDIX. 683 be attached, as may personal property of the defendant subject to a mortgage, pledge, or lien, of which the defendant has the right of redemption; provided the attaching creditor pays or tenders to the mortgagee, pawnee, or holder of the property, the amount for which it is liable within ten days after the same is demanded: All personal actions may be commenced by trustee process [garnishment], except actions of replevin, actions for tort for malicious prosecution, for slander either by writing or speaking, and for assault and battery; and any person or corporation may be summoned as trustee [garnishee] of the defendant. Debts, legacies, goods, effects, or credits, due from, or in the hands of, au executor or administrator as such, may be attached in his hands. ^ MICHIGAN. Any creditor may proceed by attachment against his debtor in the circuit court of the county in which the creditor or the debtor (or in case of joint debtors, either of them) shall reside, if the debtor have property subject to at- tachment in said county ; and in case the debtor has no property in said county, or is a non-resident of this State, then in the circuit court of any county where the property of the debtor may be found. Before any writ of attachment shall be executed, the plaintiff, or some per- son in his behalf, mast make and annex thereto an affidavit, stating that the defendant is indebted to the plaintiff, and specifying the amount of such in- debtedness as near as may be, over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment, and contain- ing a further statement that the deponent knows or has good reason to believe, either, — 1. That the defendant has absconded, or is about to abscond, from this State, or that he is concealed therein, to the injury of his creditors ; or, 2. Has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, any of his property, witli intent to defraud his ci'editors ; oi", 3. Has removed or is about to remove any of his property out of this State, with intent to defraud his creditors ; or, 4. Fraudulently contracted the debt or incrn'red the obligation respecting which the suit is brought ; or, 5. Is not a resident of this State, and has not resided therein for three months immediately preceding the time of making the affidavit; or, 6. Is a foreign corporation. The affidavit shall not be deemed insufficient by reason of the intervention of a day between the date of the jurat thereto and the issuing of the writ ; and when the person making the affidavit resides in any other county in this State than that in which the w"rit of attachment is to issue, one day's time for every thirty miles of travel, by the usual post route, from the residence of such person to the place from whicli the WTit shall issue, shall be allowed between the date of such jurat and the issuing of the writ. 1 Public Statutes of Massachusetts, 1882. 684 APPENDIX. The writ 5s executed upon real property, goods, chattels, moneys, and effects of the defendant; but no authority exists for summoning garnishees under it. Provision is made for obtaining attachments in pending suits founded on contract, express or implied, at any time before judgment, upon filing affidavit, as above set forth. Ju all personal actions arising upon contract, brought in a circuit court, or in a municipal court of civil jurisdiction, whether connuenced by declaration, writs of capias, summons, or attachment, if the plaintiff, his agent or attorney, shall file with the clerk of the court, at the time of or after commencement of suit, an affidavit stating that he has good reason to believe, and does believe, that any person (naming him) has property, money, goods, chattels, credits, and effects in his hands, or under his custody or control, belonging to the defendant, or that such person is indebted to the defendant, whether such indebtedness be due or not; that the defendant is justly indebted to the plain- tiff in a given amount, over and above all legal set-offs, and that the affiant is justly apprehensive of the loss of the same, unless a wrib of garnishment issue to the person named, — a copy of the writ or declaration and affidavit shall be attached to a writ of garnishment, to be issued by the clerk, and personally served in the same manner as a writ of summons; and from the time of such service the garnishee is held liable as such.^ MINNESOTA. In an action for the recovery of money (except for libel, slander, seduction, breach of promise of marriage, false imprisonment, or assault and battery), the plaintiff at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached, in the manner hereinafter stated, as security for the satisfaction of such judgment as the plaintiff may recover. The writ of attachment is issued whenever it appears by affidavit of the plaintiff, his agent or attorney, that a cause of action exists against the de- fendant, specifying the amount of the claim and the ground thereof, and that the defendant is either — 1. A foreign corporation ; or, 2. Is not a resident of this State ; or, 3. Has departed therefrom with the intent to defraud or delay his creditors, or to avoid the service of a summons; or, 4. Keeps himself concealed therein with like intent; or, 5. Has assigned, secreted, or disposed of, or is about to assign, secrete, or dispose of, his property, with intent to delay or defraud his creditors ; or, C. That the debt was fraudulently contracted. Before issuing the writ, the plaintiff must give a bond, witli sufficient sureties, conditioned that, if the defendant recover judgment, tlie plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the penalty of the bond, which shall be at least two hundred and fifty dollars. 1 nowell's Annotated Statutes of Michigan, 1882. APPENDIX. 685 All property, real, personal, and mixed, including all rights and shares in the stock of any corporation, all money, bills, notes, boofc: accounts, debts, credits, and all other evidences of indebtedness belonging to the defendant, are subject to attachment. In any action for the recovery of money, if the plaintiff, his agent or attor- ney, at the time of filing the complaint or issuing the summons therein, or at any time during the pendency of the action, or after judgment therein against the defendant, makes and files with the clerk of the court an affidavit stating that he believes that any person (naming him) has property, money, or effects in his hands or under his control belonging to the defendant in such action, or that such person is indebted to the defendant; and that the value of such property or effects, or the amount of such money or indebtedness, exceeds the sum of twenty-five dollars ; — a summons may be issued against such person as garnishee; and the service thereof upon the garnishee shall attach and bind all the property, money, or effects in his hands, or under his control, belong- ing to the defendant, and any and all indebtedness owing by him to the de- fendant, at the date of such service. Any debt or legacy due from an executor or administrator, and any other property, money, or effects in the hands of an executor or administrator, may be attached by this process. Debts may be attached before they are payable; and bills of exchange and promissory notes, whether under or over due, drafts, bonds, certificates of deposit, bank-notes, money, contracts for the payment of money, and other written evidence of indebtedness, in the hands of the garnishee at the time of the service of the summons, shall be deemed " effects." ^ MISSISSIPPI. The remedy by attachment applies to all actions or demands, founded upon any indebtedness, or for the recovery of damages for the breach of any con- tract, express or implied, and to actions founded upon any penal statute. An affidavit must be made by the plaintiff, his agent or attorney, of the amount of his debt or demand, to the best of his knowledge and belief, and he shall also make oath to one or more of the following particulars : — 1. That the defendant is a foreign corporation, or a non-resident of this State; or, 2. Has removed, or is about to remove, himself or his property out of this State; or, 3. So absconds, or conceals himself, that he cannot be served with a sum- mons; or, 4. That be contracted the debt or incuiTed the obligation in conducting the business of a ship, steamboat, or other watercraft in some of the navigable waters of this State ; or, 5. Has property or rights in action, which he conceals, and unjustly refuses to apply to the payment of his debts; or, 1 General Statutes of Minnesota, 1883. 686 APPENDIX. 6. Has assigned or disposed of, or is about to assign or dispose of, his prop- erty, or rights in action, or some part thereof, with intent to defraud his creditors; or, 7. Has converted, or is about to convert, his property into money, or evi- dences of debt, with intent to place it beyond the reach of his creditors; or, 8. Fraudulently contracted the debt or incurred the obligation for which suit has been or is about to be brought. In addition to the required affidavit, a bond must be executed by the plain- tiff, his agent or attorney, with a surety or sureties in double the sum for which the complaint is made, payable to the defendant, and conditioned that the plaintiff shall pay the defendant all such damages as he shall sustain by the wrongful suing out of the attachment, and all costs which 'hiay be awarded against the plaintiff in the suit. The attachment may be levied on lands, tenements, money, goods, chattels, books of account, and evidences of indebtedness, belonging to the defendant, and on the stock, share, or interest which the defendant may have in any copartnership or incorporated company; and garnishees may be summoned. An attachment may issue for a debt not due, if the creditor make affidavit of any of the three last particulars above specified as grounds for an attach- ment, or that he has just cause to suspect, and verily believes that the defend- ant will remove himself, or his effects out of the State, before the debt will become payable, with intent to hinder, delay, or defraud his creditors, or that he has removed, with like intent, leaving property in this State.^ MISSOURI. The plaintiff in any civil action may have an attachment against the prop- erty of the defendant, or that of any one or more of several defendants, in any of the following cases : — 1. Where the defendant is not a resident of this State; or, 2. Is a corporation whose chief office or place of business is out of this State; or, 3. Conceals himself so that the ordinary process of law cannot be served upon him ; or, 4. Has absconded or absented himself from his usual place of abode in this State, so that the ordinary process of law cannot be served upon him; or, 5. Is about to remove his property or effects out of this State, with the in- tent to defraud, hinder, or delay his creditors; or, 6. Is about to remove out of this State, with the intent to change his domi- cile; or, 7. Has fraudulently conveyed or assigned his property or effects so as to hinder or delay his creditors; or, 8. Has fraudulently concealed, removed, or disposed of his property or effects so as to hinder or delay his creditors ; or, 9. Is about fraudulently to convey or assign his property or effects so as to hinder or delay his creditors ; or, 1 Kevised Code of Mississippi, 1880. APPENDIX. 687 10. Is about fraudulently to conceal, remove, or dispose of his property or effects so as to hinder or delay his creditors ; or, 11. Where the cause of action accrued out of this State, and the defendant has absconded or secretly removed his property or effects into this State ; or, 12. Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor or for the seduc- tion of any female ; or, 13. Where the debtor has failed to pay the price or value of any article or thing delivered, vrhich by contract he was bound to pay upon the delivery; or, 14. Where the debt sued for was fraudulently contracted on the part of the debtor. An attachment may issue on a demand not yet due, in any of the foregoing cases, except the first, second, third, and fourth. In order to obtain an attachment an affidavit must be made by the plaintiff, or some person for him, which shall state that the plaintiff has a just demand against the defendant, and the amount which the affiant believes the plaintiff ought to recover, after allowing all just credits and set-offs, and that he has good reason to believe, and does believe, in the existence of one or more of the causes of attachment above set forth. If the cause be alleged in the lan- guage of the statute as above set forth, it is sufficient. Before the attachment can issue, the plaintiff, or some responsible person, as principal, with one or more securities, resident householders of the county in which the action is brought, must execute a bond in a sum at least double the amount sworn to, payable to the State of Missouri, conditioned that the plaintiff shall prosecute his action without delay, and with effect ; refund all sums of money that may be adjudged to be refunded to the defendant, or found to have been received by the plaintiff, and not justly to him; and pay all damages and costs that may accrue to any defendant or garnishee, by reason of the attachment, or any process or proceeding in the suit, or by rea- son of any judgment or process thereon. This bond may be sued on, at the instance and to the use of the party injured, in the name of the State. Under an attachment, the officer is authorized to seize as attachable prop- erty the defendant's account-books, accounts, notes, bills of exchange, bonds, certificates of deposit, and other evidences of debt, as well as his other prop- erty, real, personal, and mixed; and any and all judgment debts of the defendant, as well where the judgment exists in the court issuuig the writ as where it exists in any other court within the jurisdiction of the court issuing the writ: but no property declared by statute to be exempt from execution shall be attached, except in the cases of a non-resident defendant, or of a defendant who is about to move out of the State with intent to change his domicile. All persons shall be summoned as garnishees who are named as such in the writ ; and such others as the officers shall find in the possession of goods, money, or effects of the defendant not actually seized by the officer; and debtors of the defendant; and such persons as the plaintiff or his attorney shall direct.^ 1 Revised Statutes of Missouri, 1879. 688 APPENDIX. NEBRASKA. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, upon the following grounds : — 1. AVhen the defendant is a foreign corporation, or a non-resident of this State; or, 2. Has absconded with the intent to defraud his creditors; or, 3. Has left the county of his . residence to avoid the service of a sum- mons; or, 4. So conceals himself that a summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors ; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors ; or, 7. Has property, or rights of action, which he conceals; or, 8. Has assigned, removed, or disposed of, or is about to assign, remove, or dispose of, his property, or a part thereof, with the intent to defraud his creditors; or, 9. Fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation or a non-resident of this State, for any claim other than a debt or demand arising upon contract, judgment, or decree. An order of attachment shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plain- tiff, his agent or attorney, showing, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which the affiant believes the plaintiff ought to recover; 4. The existence of some one of the grounds for an attachment above enumerated. When the ground of the attachment is that the defendant is a foreign cor- poration, or a non-resident of this State, the order of attachment may be issued without an undertaking. In all other cases, the order of attachment shall not be issued by the clerk until there has been executed in his office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained. The order of attachment requires the officer to attach the lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of the defendant. When the plaintiff, his agent or attorney, shall make oath, in writing, that he has good reason to believe, and does believe, that any person or corporation, to be named, and within the county where the action is brought, has property of the defendant (describing the same) in his possession, if the officer cannot come at such property, he shall summon such person or corporation as gar- APPENDIX. 689 nishee; and the garnishee shall stand liable to the plaintiff for all property, moneys, and credits in bis hands, or due from him to the defendant from the time he is garnished.^ NEVADA. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached, as security for the satisfac- tion of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases: — I. In an action upon a contract for the direct payment of money, made, or by the terms thereof, payable in this State, which is not secured by mortgage, lien, or pledge upon real or personal property situated or being in this State, if so secured, when such security has been rendered nugatory by the act of the defendant. II. In an action upon a contract against a defendant not residing in this State. The clerk of the court issues the writ of attachment upoa receiving an affi- davit by or on behalf of the plaintiff, showing, — 1. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all legal set-offs or counter-claims, upon a contract for the direct payment of money, and that such contract was made, or is, by the terms thereof, payable in this State, and that the payment of the same has not been secured by any mortgage, lien, or pledge, upon real or per- sonal property situate or being in this State ; or, if so secured, that said security has been rendered nugatory by the act of the defendant; or, 2. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs or counter-claims, and that the defendant is a non-resident of this State; and, 3. That the sum for which the attachment is asked is an actual bond fide, existing debt, due and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, not exceeding the amount claimed by the plaintiff, in gold coin of the United States, with sufficient sureties, to the effect that if the defendant recover judgment the plaintiff will pay, in gold coin of the United States, all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. All property of the defendant, together with the interest and profits therein, and all debts due the defendant, and all other property in this State of the defendant, not exempt from execution, including rights or shares of stock in any corporation or company, are attachable, unless the defendant give security by the undertaking of at least two sufficient sureties, in an amount sufficient to satisfy the plaintiff's demand, besides costs, in the money or currency of the contract. 1 Woosley & Wheaton's Annotated Statutes of Nebraska, 1881. 44 690 APPENDIX. Upon receiving information in writing from the plaintiff or his attorney, that any person has in his possession, or under his control, any credits or other personal property belonging to the defendant, or is owing any debt to the defendant, such person shall be summoned as garnishee. ^ NEW HAMPSHIRE. In this State the writ of attachment, as distinguished from that form of such writ known as " foreign attachment " or |' trustee process," issues as a matter of course, upon tlie institution of any personal action. It is declared in the law to be an original process in the courts, and commands the officer to attach the goods and estate of the defendant. Under it, all property, real and per- sonal, which is liable to be taken in execution ; shares of stock in any corpora- tion; pews and seats in meeting-houses or places of public worship; and the franchise of any corporation authorized to receive tolls, so far as relates to the rights to receive tolls, with all the privileges and immunities belonging thereto, — may be attached; but garnishees are not summoned. Property so attached is holden until the expiration of thirty days from the time of rendering judgment in the action in favor of the plaintiff, that execu- tion may issue thereon. All personal actions may be commenced by the process of foreign attach- ment, or trustee process, excej^t actions of replevin and trespass to the person, and actions for defamation and malicious prosecution. This trustee writ is an attachment and summons, and is served upon the defendant and the trustees (or garnishees) in the same manner as writs of summons. The plaintiff may insert the names of as many persons as trustees as he may deem necessary, at any time before the process is served on the defendant, but not after. A trustee may be required to answer, in writing and under oath, interroga- tories as to his liability as trustee; and everj' person summoned as trustee, and having in his possession any money, goods, chattels, rights, or credits of the defendant, at the time of the service of the writ on him, or at any time after such service and before his disclosure, shall be adjudged a trustee therefor.^ NEW JERSEY. If any creditor shall make oath or affirmation before any judge of any of the courts of record of this State, or justice of the peace of any county in the same, that he verily believes that his debtor absconds from his creditors, and is not, to his knowledge or belief, resident in the State at the time, the clerk of the Supreme Court, or of any circuit court or court of common pleas, shall issue a writ of attachment, commanding the sheriff to attach the rights and credits, moneys and effects, goods and chattels, lands and tenements, of such debtor, wheresoever they may be found. 1 Bonnifichl & Ilcaly's Conipilc'l Laws of Nevada, 1873. '^ General Laws of New ILuupshirL', 1878. APPENDIX. 691 If the creditor be absent or reside out of the State, the oath may be made by his agent or attorney. Attachment may also be maintained against non-resideut debtors, absent or absconding females, and foreign corporations. It issues against the heirs and devisees of a deceased debtor, in all cases in which it might lawfully have been issued against the debtor in his lifetime. Legacies and distributive shares of estates in the hands of executors or administrators may be attached. The personal property in this State of a non-resident is not liable to attach- ment in favor of a non-resident, where such property is exempt from attachment by the law of the State of which the debtor and creditor are residents. The writ binds the rights and credits, moneys and effects, goods and chat- tels, of the defendant, from the time of executing the same, and his lands from the time of issuing the writ. The officer in executing the writ is authorized and required (having first made demand and being refused) to break open any house, chamber, room, shop, door, chest, trunk, or other place or thing, where he shall, be informed, or have reason to believe, any money, goods, books of account, bonds, bills, notes, papers, or writings of the defendant may be deposited, secreted, had, or found. On the return of the writ, the clerk gives notice, for a space of not less than two and not more than three months, in one or more newspapers circulating in the State, of the attachment; and the plaintiff must set up a copy of such notice in the clerk's office, for the same space of time. Other creditors are admitted, upon filing affidavit with the clerk of the amount of their claims. On the return of the writ, the court appoints a fit person to audit and adjust the demands of the plaintiff, and of so many of the defendant's creditors as shall have applied to the court, or to the auditor before he shall have made his report, for that purpose. Final judgment may be entered of course, in term time or vacation, upon the report of the auditor, at any time after six months from the return of the writ. The auditor may issue his warrant under his hand and seal, commanding the sheriff of the county, or any constable, to bring before him, at a certain time and place therein specified, the wife of the defendant, or any other person and examine them, by word of mouth or interrogatories in writing, touching all matters relating to the trade, dealings, moneys, debts, effects, rights, credits, lands, tenements, property, and estate of the defendant, and his secret grants, or fraudulent transfer or conveyance of the same; and he may also issue his warrant commanding the sheriff or constable (having first made demand and been refused) to break open any place or thing where he shall have reason to believe any moneys, goods, chattels, books of account, bonds, bills, notes, papers, or writings of the defendant may be deposited, secreted, had, or found, and to seize and inventory the same, and make report thereof to the court at the next tei-m. The auditor may also sue before justices of the peace for demands not ex- ceeding one hundred dollars due the defendant. He is required to seU the property of the defendant, real and personal. 692 APPENDIX. After which he must give public notice in newspapers, requiring a meeting of the plaintiff, and creditors who may have applied, at a certain time and place. At which meeting, or other subsequent one, the auditor shall distribute among the plaintiff and creditors equally, and in a ratable proportion, according to the amount of their respective debts, as ascertained by the auditor's report, and the judgment of the court thereon, all the moneys arising from the sale of the goods and chattels, lands and tenements, first deducting legal costs and charges; and, if the moneys be not sufficient to satisfy the debts, they shall assign to the plaintiff and creditors the choses in action, rights, and credits of the defendant, in proportion to their respective debts; which assignment shall vest the property and interest of the defendant in the assignee, so as he may 8ue for and recover the same in his own name and to his own use. Any one may be summoned as a garnishee, notwithstanding his denial of having any moneys, goods, &c., of the defendant, if the plaintiff makes oath that he believes he has moneys, goods, &c., and is in fear of the garnishee's absconding before judgment and execution can be had. When judgment is entered against the defendant by default on the report of the auditor, a scire facias issues against the garnishee, to appear at the next term after entry of such judgment, and show cause why the plaintiff should not have execution of the money due from him to the defendant. ^ NEW YORK. A warrant of attachment against the property of one or more defendants in an action may be granted upon the application of the plaintiff, where the action is to recover a sum of money only, as damages for one or more of the following causes : I. Breach of contract, express or implied, other than a contract to marry. II. Wrongful conversion of personal property. III. Any other injury to personal property, in consequence of negligence, fraud, or other wrongful act. To entitle the plaintiff to such a warrant, he must show, by affidavit, to the satisfaction of the judge gi-anting the same, — 1. That one of the above causes of action exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter-claims known to him. 2. That the defendant is either a foreign corporation or not a resident of the State; or, if he is a natural person and a resident of this State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, if the defendant is a natural person or a domestic corporation, that he or it has removed or is about to remove property from the State, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, property, with the like intent. 1 Revision of the Statutes of New Jersey, 1877. APPENDIX. 693 The judge, before granting the warrant, must require a written undertaking on the part of the plaintiff, with sufficient sureties, to the effect that, if the defendant recovers judgment, or if the warrant is vacated, tlie plaintiff will pay- all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified iu the undertaking, which must be at least two hundred and fifty dollars. It is not a defence to an action on this undertaking, that the warrant was granted improperly for want of jurisdiction, or for any other cause. The sheriff must levy the warrant upon so much of the personal and real property of the defendant, within his county, not exempt from levy and sale under execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other papers relating to the personal property attached, and all evidences of the defendant's title to the real property attached, which he must safely keep, to be disposed of as prescribed by the law. The real property, which may be levied on, includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant. Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may lev}' upon the sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county ; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof. The rights or shares which the defendant has in the stock of an association or corporation, together with the interest and profits thereon, may be levied upon; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges with respect thereto which the defendant had when they were so attached. The attachment may also be levied upon a cause of action arising upon con- tract, including a bond, promissory note, or other instrument for the payment of money only, negotiable or otherwise, whether past due or yet to become due, executed by a foreign or domestic government, state, county, public officer, association, municipal or other corporation, or by a private person, either within or without the State, which belongs to the defendant, and is found within the county. The levy of the attachment thereupon is deemed a le^T^ upon, and a seizure and attachment of, the debt represented thereby. Upon the application of a sheriff, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, specifying the rights or number of shares of the defendant in the stock of the association or corporation, with all the dividends declared, or incumbrances thereon ; or the amount, nature, and description of the property held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or demand owing to the defendant, as the case requires. 694 APPENDIX. If a person, to whom application is so made by the sheriff, refuses to give such a certilicate; or if it is made to appear, by affidavit, to the satisfaction of the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown thereby, the court or judge may make an order directing him to attend at a specified time, and at a place within the county to which the warrant is issued, and submit to an examination under oath concerning the same. The sheriil' must, subject to the direction of the court or judge, collect and receive all debts, effects, and things in action attached by him. He may main- tain any action or special proceeding, in his own name or in the name of the defendant, which is necessary for that purpose, or to reduce to his actual pos- session an article of personal property capable of manual delivery, but of which he has been unable to obtain possession. And he may discontinue such an action or special proceeding at such time and on such terms as the court or judge directs. Tlie sheriff must keep the property attached by him, or the proceeds of property sold, or of a demand collected by him, to answer any judgment that may be obtained against the defendant. But the court, upon the appli- cation of either party to the action, may direct the sheriff, either before or after the expiration of his term of office, to pay into court the proceeds of a demand collected, or property sold ; or to deposit them in a designated bank or trust company, to be drawn out only upon the order of the court. The plaintiff, by leave of the court or judge, may bring or maintain, in the name of himself and the sheriff jointly, by his own attorney and at his own expense, any action which might be brought by the sheriff, as aforesaid, to recover property attached, or the value thereof, or a demand attached. The sheriff must receive the proceeds of such an action; but he is not liable for the costs or expenses thereof.^ NORTH CAROLINA. An attachment may be obtained in an action arising on contract, for the recovery of money only, or in an action for the wrongful conversion of per- sonal property. Tlie warrant of attachment may issue at the time of issuing tlie summons, or at any time afterward, upon affidavit being made and undertaking filed. The affidavit must show that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof; and that the defendant is either — 1. A foreign corporation; or, 2. Not a resident of this State; or, 3. Has departed therefrom with intent to defraud his creditors or to avoid the service of a summons; or, 4. Keeps himself concealed tlierein with like intent; or, 1 Annotated New York Code of Civil Procedure, 1883. APPENDIX. 695 5. Has removed or is about to remove any of his property from this State, with intent to defraud his creditors ; or 6. Has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with the like intent. Before issuing the warrant, the officer must require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect that if the defendant recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defend- ant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars. The warrant may be levied on real property liable to execution, on tangible personal property, on rights or shares which the defendant may have in the stock of any association or corporation, and upon debts due the defendant. Such debts the officer collects aud receives into his possession; to which end he may take such legal proceedings, either in his own name or in that of the defendant, as may be necessary. ^ OHIO. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, upon the following grounds: 1. When the defendant is a foreign corporation, or a non-resident of this State; or, 2. Has absconded with the intent to defraud his creditors; or, 3. Has left the county of his residence to avoid the service of a summons; or, 4. So conceals himself that a summons cannot be served upon him ; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, 7. Has property, or rights in action, which he conceals; or, 8. Has assigned, removed, or disposed of, or is about to dispose of, his property, or a part thereof, with the intent to defraud his creditors; or, 9. Fraudulently or criminally contracted the debt or incurred the obligation for which suit is about to be or has been brought. But an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of this State, for any other claim than a debt or demand arising upon contract, judgment, or decree. An order of attachment is made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which the affiant believes the plaintiff ought to recover; and, 1 Battle's Revisal of Public Statutes of Nortli Carolina, 1873. 69G APPENDIX. 4. The existence of some one of the grounds for an attachment above enumerated. When the ground of the attachment is, tliat the defendant is a foreign cor- poration, or a non-resident of tliis State, the order of attachment may be issued without an undertaking. In all other cases, it shall not be issued until there has been executed in the clerk's office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking, in a sum equal to double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay the defendant all damages which he may sustain by reason of the attach- ment, if the order prove to have been wrongfully obtained. Under the order of attachment may be attached lands, tenements, goods, chattels, stocks, or interest in stocks, rights, credits, moneys, and effects of the defendant, not exempt by law from the payment of plaintiff's claim. When there are several orders of attachment against the same defendant, they shall be executed in the order in which they were received by the sheriff. A receiver may be appointed by the court or any judge thereof during vacation, who shall take possession of all notes, due-bills, books of account, accounts, and all other evidences of debt, that have been taken by the officer, as the property of the defendant, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as such receiver; but in such actions no right of defence shall be im- paired or affected. The receiver is to give notice forthwith of his appointment, to the persons indebted to the defendant; which notice shall be served by copy; and, from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of moneys and credits in their hands or due from them to the defendant, and shall account therefor to the receiver. An attachment may be obtained on a claim before it is due, — 1. Where a debtor has sold, conveyed, or otherwise disposed of his prop- erty, with the fraudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts ; or, 2. Is_ about to make such sale, conveyance, or disposition of his property, with such fraudulent intent; or, 3. Is about to remove his property, or a material part thereof, with the intent or to the effect of cheating or defrauding his creditors, or of hindering or delaying them in the collection of their debts. Garnishees may be summoned, who shall appear and answer, under oath, all questions put to them, touching the property of every description and credits of the defendant in their possession or under their control.^ OREGON. In an action for the recovery of money or damages, the plaintiff at any time after the commencement of the action, and before judgment, may have the property of the defendant attached, as a security for the satisfaction of such judgment as he may recover. 1 Eevised Statutes of Ohio, 1880. APPENDIX. 697 A writ of attachment shall be issued by the clerk of the court in ^\-hich the action is pending, ^vhenever the plaintiff, or any one on his behalf, shall make and file an affidavit, that a cause of action exists against the defendant, and the grounds thereof, and that the defendant is either — 1. A foreign corporation ; or, 2. Is not a resident of this State, or has departed therefrom with intent to delay or defi-aud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent; or, 3. Has removed or is about to remove any of his property from this State, with intent to delay or defraud his creditors; or, 4. Has assigned, secreted, or disposed of any of his property, or is about to assign, secrete, or dispose of it, with intent to delay or defraud his cred- itors; or, 5. Has been guilty of a fraud in contracting the debt or incun-ing the obli- gation for which the action is brought. To obtain the writ, the plaintiff must file with the clerk his undertaking, with one or more sureties, in a sum not less than one hundred dollars, and equal to the amount for which the plaintiff demands judgment, and to the effect that the plaintiff will pay all costs that may be adjudged to the defend- ant, and all damages which he may sustain by reason of the attachment, if the same be wrongful or -vs-ithout sufiicient cause, not exceeding the sum specified in the undertaking. All property of the defendant, not exempt from execution, including his rights or shares in the stock of any association or corporation, together with the interests and profits thereon, may be attached. Personal property, not capable of manual delivery, may be attached by leaving a certified copy of the writ, and a notice specifying the property at- tached, with the person having the possession of the same ; or if it be a debt, then with the debtor ; or if it be rights or shares in the stock of an association or corporation, or interest or profits thereon, then with such person or officer of such association or corporation as the law authorizes a summons to be served upon.^ PEXXSYLYAXIA. In this State there is foreign attachment, domestic attachment, and a third description which has no distinctive designation. I. The writ of foreign attachment issues, as a matter of right, against a foreign corporation, and against a person not residing within the State, and not being within the county where the writ issues, at the time of its issue. Under it real and personal estate may be attached, and garnishees summoned, who are required to answer interrogatories propounded by the plaintiff. The benefit of the writ of foreign attachment inures to the attaching creditor alone, and not to all his creditors, as in the case of domestic attachment. II. The writ of domestic attachment issues against any debtor, being an inhabitant of the State, if such debtor shall have absconded from the place of his usual abode within the same, or shall have remained absent from the 1 General Laws of Oregon, 1874. 698 APPENDIX. State, or shall have confined himself in his own house, or concealed himself elsewhere, with design, in either case, to defraud his creditors. And the like proceedings may be had if a debtor, not having become an inhabitant of the State, shall confine or conceal himself within the comity, with intent to avoid the service of a process, and to defraud his creditors. This writ does not issue, except upon oath or affirmation, previously made by a creditor or by some person in his behalf, of the truth of his debt, and of the facts upon which the attachment shall be founded. It commands the officer to attach the goods and chattels, lands and tenements, of the defend- ant, and to summon garnishees. Upon the writ being executed, the court appoints three trustees, to whom the officer delivers the personal property attached ; and the trustees thereupon publish notice in a newspaper, requiring all persons indebted to the defendant, or holding property belonging to him, to pay and deliver the same to them, and also desiring all creditors of the defendant to present their respective accounts or demands. All the estate of the defendant attached or afterwards discovered by the trustees vests in the trustees, and they may sue for and recover the same in their own names. They are authorized to summon all persons residing in the county, supposed to be indebted to the defendant, and examine them on oath, as they shall think fit, touching the real or personal estate of the defendant, and such other things as may tend to disclose their estates, or their secret grants, or alienation of their effects. If such persons reside in another county, the trustees may send interrogatories in writing, and examine them to the same effect. The trustees may issue warrants commanding houses, chambers, shops, stores, and warehouses of the defendant to be broken open, and any trunks or chests of the defendant, in which his goods or effects, books of account, or papers relating to his estate shall be, or shall be reputed to be, to be seized for the benefit of his creditors. They are empowered to recover any property fraudulently disposed of by the defendant, and they may redeem mortgaged property. They are authorized to sell the estate, real and personal, of the defendant which has become vested in them, and to assign any or all of the debts due or to become due to him ; and the purchaser or grantee may sue for and recover such property or debts, in his own name and to his own use. The trustees then fix a day, and proceed to hear the proofs of all creditors of the defendant of their respective claims; and having stated their accounts, and ascertained the proportionate sum payable to each creditor, they file their report of the same in the office of the prothonotary; and, if no exceptions to the report be filed within a limited time, they proceed to distribute the money, ratably and without preference, among all the creditors who have proved their claims. The death of the defendant after the issuing of an attachment does not abate or otherwise affect tlie proceedings thereon. No second or other attachment can be issued against or served upon the estate or effects of the same defendant, except those issued into another county, unless the first attachment be not executed, or be dissolved by the court. APPENDIX. 699 III. On the 17th of March, 1S69, a law was enacted in this State extending the remedy by attachment. Under this law, an attachment issues by the prothonotary of a court of record against any defendant, ui^on proof by the affidavit of the plaintiff, or any other person for him, that the defendant is justly indebted to him in a sum exceeding one huudi-ed dollars, and setting forth in the affidavit the nature and amount of the indebtedness, and that, — 1. The defendant is about to remove his property out of the jurisdiction of the court in which the attachment is applied for, with intent to defraud his creditors; or, 2. Has property, rights in action, or interest in any public or corporate stock, money, or evidences of debt, which he fraudulently conceals ; or, 3. Has assigned, disposed of, or removed, or is about to assign, dispose of, or remove, any such property, money, rights in action, interest in public or corporate stock, or evidences of debt, with the intent to defraud his credit- ors; or, 4. Fraudulently contracted the debt or incurred the obligation for which the plaintiff's claim is made. Before the writ issues under this act, the plaintiff, or some one on his be- half, must execute and file with the prothonotary a bond, in a penalty of at least double the amount claimed, with good and sufficient surety, to be ap- proved by the prothonotary; conditioned that if the plaintiff shall fail to prosecute his action with effect, and recover a judgment against the defendant, he shall pay the defendant all legal costs and damages which he may sustain by reason of the attachment. If two or more attachments are issued against the same defendant, the one first in the hands of the proper officer for service has the prior lien, and the others, issued in pursuance of this act, in the order of time in which they afe issued to the officer.^ RHODE ISLAND. An original writ of attachment, commanding the attachment of the real or personal estate of the defendant, including his personal estate in the hands or possession of another person as trustee of the defendant, and his stock or shares in any banking association or other incorporated company, may be issued by the Supreme Court, court of common pleas, or by any justice court, whenever the plaintiff, his agent or attorney, shall make affidavit, to be indorsed thereon or annexed thereto, that the plaintiff has a just claim against the defendant that is due, upon which the plaintiff expects to recover in such action a sura sufficient to give jurisdiction to the court in which the writ is returnable ; and, also, 1. That the defendant is an incorporated company established out of this State; or, 2. Resides out of this State; or, 3. Has left the State, and is not expected by the affiant to return within the same in season to be served with process returnable to the next term of the court ; or, 1 Brightley's Purdon's Digest of Pennsylvania Laws, 10th Edition, 1873. 700 APPENDIX. 4. Has committed fraud in contracting the debt upon which the action is founded, or in the concealment of his property, or in the disposition thereof; or, 5, That, since the contracting of such debt, the defendant has been the owner of property, or in the receipt of an income, which he has refused or neglected to apply towards the payment thereof, though requested by the plaintiff so to do. A writ of attachment may be issued in an action already commenced by summons, in the like cases, and on the like affidavit, as in the case of an orig- inal writ of attachment. The writ commands the attachment of the goods and chattels of the defend- ant, and his real estate, and his personal estate in the hands of another person as his trustee, and his stock or shares in any banking association or incoi'porated company. Under the writ, garnishees may be summoned, and must answer under oath.i SOUTH CAROLINA. In any action arising for the recovery of money, or for the recovery of property, whether real or personal, and damages for the wrongful conversion and detention of personal property, or in an action for the recovery of damages for injury done to either person or property; the plaintiff, at the time of issu- ing the summons, or any time afterwards, may have the property of the defendant attached, as a security for the satisfaction of such judgment as the plaintiff may recover, in any of the following cases: — 1. Where the defendant is a corporation created by or under the laws of any other State, government, or country ; or, 2. Is not a resident of this State; or, 3. Has absconded or concealed himself ; or, 4. Is about to remove any of his property from this State ; or, 5. Has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with intent to defraud creditors. To obtain an attachment, it is necessary that it should appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim, and the grounds thereof, and that one or other of the said grounds for attachment exists ; and that a written undertaking should be filed, on the part of the plaintiff, with sufficient surety, to the effect that if the de- fendant recover judgment, or the attachment be set aside by order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not ex- ceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars, except in case of a warrant issued by a trial justice, when it shall be at least twenty-five dollars. All real and personal estate, including money and bank-notes, except such real and personal estate as is exempt from attachment, levy, or sale by the Constitution ; and all books of account, vouchers, and papers relating to the 1 Public Statutes of Rhode Island, 1882. APPENDIX. 701 property, debts, credits, and effects of the debtor, together with all evidences of his title to real estate, — may be levied upon under attachment. Kiglits or shares in the stock of any corporation may be attached. The execution of the attachment upon any such rights or shares, or upon any debts or other property incapable of manual delivery, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or man- aging ageut thereof, or with the debtor or individual holding such property, with a notice showing the property levied on; and such person shall furnish the officer with a certificate under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, or the amount and description of the property held by such association, corpora- tion, or individual, for the benefit of, or debt owing to, the defendant. And this may be compelled by attachment of the body.^ TEXXESSEE. Any person having a debt or demand due at the commencement of an action, or a plaintiff after action for any cause has been brought, and either before or after judgment, may sue out an attachment at law or in equity against the property of a debtor or defendant, in the following cases: — 1. Where the debtor or defendant resides out of the State; or, 2. Is about to remove or has removed himself or property from the State; or, 3. Has removed or is removing himself out of the county privately; or, 4. Conceals himself so that the ordinary process of law cannot be served upon him ; or, 5. Absconds, or is absconding or concealing himself or property; or, 6. Has fraudulently disposed of, or is about fraudulently to dispose of, his property; or, 7. Where any person liable for any debt or demand, residing out of the State, dies, leaving property in the State. When the debtor and creditor are both non-residents of this State, and resi- dents of the same State, the creditor cannot have an attachment against the property of the debtor, unless he swear that the property of the debtor has been fraudulently removed to this State to evade the process of law in the State of their domicile or residence. An attachment may be sued out upon debts or demands not due, in any of the cases above enumerated, except the first. Any accommodation indorser or surety may sue out an attachment against the property of his principal, as a security for his liability, whether the debt on which he is bound be due or not; but the attachment in such case shall be dis- charged, if the principal give bond and security to be approved by the court iu term time, or its clerk in vacation, to indemnify the plaintiff. In all actions for tort?, where the defendant is a non-resident of this State, or falls within any of the provisions of existing laws of this State, authonzmg 1 Lynch's Code of Procedure of South Carolina, 1880. 702 APPENDIX. attachments to issue, the plaintiff may commence liis suit by attachment, in the same way and manner as suits are commenced upon contracts ; but the plaintiff, his agent or attorney, must in such case make affidavit before the judge or clerk issuing the attachment, that the damages sued for are justly due the plaintiff, as affiant believes, but that the true amount of such damages is not ascertained, and that one or more of the aforesaid causes exists for the issue of the attachment. To obtain an attachment in other cases, the plaintiff, his agent or attorney, must make oath in writing, stating the nature and amount of the debt or demand, and that it is a just claim ; and, also, that one or more of the above enumerated causes for attachment exists; and two or more causes may be stated in the alternative. The plaintiff, his agent or attorney, must, before the writ issues, execute a bond in double the amount claimed to be due, with sufficient security, payable to the defendant, and conditioned that the plaintiff will prosecute the attach- ment with effect, or, in case of failure, pay the defendant all costs that may be adjudged against him, and also all such damages as he may sustain by the wrongful suing out of the attachment. Attachments may be levied upon any real or personal property of either a legal or equitable nature, debts, or choses in action, whether due or not, in which the defendant has an interest; and garnishees may be summoned.' TEXAS. Original attachments are issued, upon the plaintiff, his agent or attorney, making an affidavit in writing, stating that the defendant is justly indebted to the plaintiff, and the amount of the demand, and that the defendant, — 1. Is not a resident of the State, or is a foreign corporation, or is acting as such ; or, 2. Is about to remove permanently out of the State, and has refused to pay or secure the debt due the plaintiff; or, 3. Secretes himself so that the ordinary process of law cannot be served on him ; or, 4. Has secreted his property for the purpose of defrauding his creditors; or, 5. Is about to secrete his property for the purpose of defrauding his credi- tors; or, 6. Is about to remove his property out of the State, without leaving sufficient remaining for the payment of his debts; or, 7. Is about to remove his property, or a part thereof, out of the county where the suit is brought, with intent to defraud his creditors; or, 8. Has disposed of liis property, in whole or in part, with intent to defraud his creditors; or, 9. Is about to dispose of his property with intent to defraud his creditors; or, 10. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, 11. That the debt is due for property obtained under false pretences. 1 Tliompson & Stegcr's Compilation of Laws of Tennessee, 1872. APPENDIX. 703 The affidavit must further state, 1. That the attachment is not sued out for the purpose of injuring or harassing the defendant; and 2. That the plaintiff will probably lose his debt unless the attachment is issued. Before the issue of the attachment, the plaintiff, his agent or attornej', must execute a bond, with two or more good and sufficient sureties, payable to the defendant, in at least double the amount sworn to be due, conditioned that the plaintiff will prosecute his suit to effect, and pay such damages and costs as shall be adjudged against him for wrongfully suing out such attachment. The writ of attachment goes against the property of the debtor, wherever the same may be found. It may issue in all cases, although the debt- or demand be not due; but no judgment shall be rendered until the demand becomes due. "Writs of garnishment may be issued, — 1. Where an original attachment has been issued as above provided : and 2. Where the plaintiff sues for a debt, and makes affidavit that such debt is just, due, and unpaid, and that the defendant has not, within this State, sub- ject to execution, sufficient to satisfy such debt; and that the garnishment applied for is not sued out to injure either the defendant or the garnishee. 3. W^here the plaintiff has a judgment, and makes affidavit that the defend- ant has not, within his knowledge, property in his possession within this State, subject to execution, sufficient to satisfy such judgment. In the second case specified in this connection the plaintiff must execute a bond, with two or more sufficient sureties, to be approved by the officer issuing the writ, payable to the defendant in the suit, in double the amount of the debt claimed therein, conditioned that he will prosecute his suit to effect and pay all damages and costs that may be adjudged against him for wrongfully suing out such garnishment. Before the issue of the writ of garnishment the plaintiff must make applica- tion therefor in writing, under oath, signed by him, stating the facts author- izing the issue of the writ, and that he has reason to believe, and does believe, that the garnishee, stating his name and residence, is indebted to the defend- ant, or that he has in his hands effects belonging to the defendant, or that the garnishee is an incorporated or joint stock company, and that the defendant is the owner of shares in such company, or has an interest.therein.i VEEIMONT. The ordinary mode of process in civil causes is by writ of summons or attachment. Writs of attachment may issue against the goods, chattels, or estate of the defendant, and for want thereof against his body. No writ shall issue unless there be sufficient security given to the defendant, by way of recognizance, by some person other than the plaintiff, to the satis- faction of the authority signing the writ, that the plaintiff shall prosecute his writ with effect, and shall answer all damages, if judgment be rendered against him. 1 Revised Statutes of Texas, 1879. 704 APPENDIX. Actions founded on a contract, express or implied, made and entered into since the first day of January, 1839, actions of account, book account, and actions founded on a contract where the defendant has absconded from, or is resident out of, this State, or is concealed within this State, may be commenced by trustee process. The writ in such case, authorizes the attachment of the goods, chattels, or estate of the defendant in his own hands, and also any goods, effects, or credits in the hands of the trustees. Every person having any goods, effects, or credits of the defendant intrusted or deposited in his hands or possession, or which shall come into his hands or possession after the service of the writ and before disclosure is made, may be summoned as a trustee; and such goods, effects, and credits shall thereby be attached, and held to respond to the final judgment in the suit. Whatever any trustee may have of the defendant's in his hands or possession, which he holds against law or equity, may be attached by this process. Negotiable paper, under or over due, may be attached by the trustee process, and shall be subject to the operation of the trustee process, unless it appear that the same had been negotiated, and notice thereof given to the maker or indorser b(?fore the service of the trustee process on him. But negotiable paper, actually assigned, negotiated, and transferred to any bank, savings bank, trust company, or insurance company, in the State, before it becomes due, shall be exempt from attachment by trustee process. Any debt or legacy due from an executor or administrator, and any other goods, effects, or credits in the hands of an executor or administrator, as such, may be attached in his hands by the trustee process. All corporations may be summoned as trustees. Any money or other thing due to the defendant may be attached by the trustee process before it has become payable, provided it be due absolutely and without any contingency; but the trustee shall not be compelled to pay or deliver it before the time appointed therefor by the contract. Trustees may be examined on oath, touching the effects, &c., of the defend- ant in their hands: but the answer of a trustee under oath is not conclusive in deciding how far he is chargeable ; but either party may allege and prove any facts that may be material in deciding that question. ^ VIRGINIA. "When any suit is instituted for any debt, or for damages for breach of any contract, on affidavit stating the amoimt and justice of the claim, that there is a present cause of action therefor, that the defendant is not a resident of this State, and that the affiant believes he has estate or debts due him within the county or corporation in which the suit is, — the plaintiff may forthwith sue out of the clerk's office an attachment against the estate of the non-resident defendant, for the amount so stated. On affidavit, at the time of or after the institution of any suit, that the plaintiff 's claim is believed to be just; and, where tlie suit is to recover specific 1 Revised Laws of Vermont, 1880. APPENDIX. 705 personal property, stating the nature, and according to the affiant's belief the value, of such property, and the probable amount of damages tlie plaintiff will recover for the detention thereof; or, where it is to recover money for any claim or damages for any wrong, stating a certain sum which (at the least) the affiant believes the plaintiff is entitled to, or ought to recover ; and an affidavit, also, that the affiant believes that the defendant is removing or intends to remove such specific property, or his own estate, or the proceeds of the sale of his property, or a material part of such estate or proceeds, out of this State, so that process of execution on a judgment in said suit, when it is obtained, will be unavailing, — in any such case the clerk shall issue an attachment. If the suit be for specific property, the attachment may be against the specific property sued for, and against the defendant's estate, for so much as is sufficient to satisfy the probable damages for its detention ; or, at the option of the plaintiff, against the defendant's estate, for the value of such specific property and the damages for its detention. If the suit be to recover money for a claim, or damages for a wrong, the attachment shall be against the defendant's estate, for the amount specified in the affidavit, as that which the affiant believes the plaintiff is entitled to or ought to recover. An attachment may issue before a claim is due and payable, upon complaint supported by affidavit that the debtor intends to remove, or is removing, or has removed, his effects out of this State, so that there will probably not be therein sufficient effects of the debtor to satisfy the claim when judgment is obtained therefor, should the ordinary process of the law be used to obtain such judg- ment; and upon further affidavit of the amount and justice of the claim, and at what time the same is payable. Attachments (except where sued out specially against specified property) may be levied upon any estate, real or personal, of the defendant ; and gar- nishees may be summoned, who are required to answer on oath. Equitable claims for money or property may be enforced by suit and attach- ment in chancery, upon affidavit being made as in actions at law.^ WEST VIRGINIA. When any action at law or suit in equity is about to be or is instituted for the recovery of any claim or debt arising out of contract, or to recover damages for any wrong, the plaintiff, at the commencement of the action or suit, or at any time thereafter, and before judgment, may have an order of attachment against the property of the defendant, on filing with the clerk of the court his own affidavit, or that of some credible person, stating the nature of the plain- tiff's claim and the amount the affiant believes the plaintiff is justly entitled to recover in the action ; and also that the affiant believes that some one or more of the following grounds exist for such attachment: — 1. That the defendant, or one of the defendants, is a foreign corporation, or is not a resident of this State; or, 2. Has left or is about to leave the State, with intent to defi-aud his cred- itors; or, ^ Code of Virginia, 3d Edition, 1873. 45 706 APPENDIX. 3. So conceals himself that a summons cannot be served upon him ; or, 4. Is removing, or is about to remove, his property, or a part thereof, out of this State, with intent to defraud his creditors; or, 5. Is converting, or is about to convert, his property, or a part thereof, into money or securities, with intent to defraud his creditors; or, 6. Has assigned or disposed of his property, or a part thereof, or is about to do so, with intent to defraud his creditors ; or, 7. Has property, or rights of action, which he conceals; or, 8. Fraudulently contracted the debt or incurred the liabiUty for which the action or suit is brought. Unless the attachment is sued out upon the first of those grounds, the affi- ant shall also state, in his affidavit, the material facts relied on by him to show the existence of the grounds upon which his application for the attach- ment is based. Every attachment may be levied upon any estate, real or personal, of the defendant ; and the plaintiff may, by an indorsement on the order of attach- ment, designate any person as being indebted to, or having in his possession, the effects of the defendant ; and such person may be summoned as garnishee. If the plaintiff shall, at the time of suing out the attachment, give bond, with security approved by the clerk, m a penalty of at least double the amount of the claim sworn to, with condition to pay all costs and damages which may be awarded against him, and to pay to any claimant of any property seized or sold under or by virtue of the attachment all damages which he may recover in consequence of such seizure or sale ; and also to warrant and defend to any purchaser of the property such estate or interest therein as is sold ; or sustained by any person by reason of his suing out the attachment, the officer shall take possession of the property levied on by virtue of the attachment.^ WISCONSIN. Any creditor is entitled to proceed by attachment. In order to obtain an attachment, the plaintiff, or some person in his behalf, must make an affidavit, stating that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs, and that the same is due upon contract, express or implied, or upon judgment or decree, and that the deponent knows, or ^has good reason to believe, either, — 1. That the defendant has absconded or is about to abscond from this State, or is concealed therein to the injury of his creditors, or, keeps himself con- cealed therein, with intent to avoid the service of a summons; or, 2. Has assigned, conveyed, disposed of, or concealed, or is about to assign, convey, dispose of, or conceal, his property, or any part thereof, with intent to defraud his creditors ; or, 3. Has removed or is about to remove any of his property out of this State, with intent to defraud his creditors ; or, 1 Revised Statutes of West Virginia, 1879. APPENDIX. 707 4. Fraudulently contracted the debt or incurred the obligation respecting which the action is brought ; or, 5. Is not a resident of this State; or, 6. Is a foi'eign corporation; or, if created under the laws of this State, that all the proper officers on whom to serve the summons do not exist, are non- residents of the State, or cannot be found; or, 7. That the action is brought against the defendant, as principal upon an official bond, to recover money due the State, or some county or other munici- pahty therein. An attachment may also be obtained on an affidavit showing that a cause of action sounding in tort exists in favor of the plaintiff against the defendant, that the damages sustained and claimed exceed fifty dollars, and 1. That the defendant is not a resident of this State, or that his residence is unknown, and cannot with due diligence be ascertained; or, 2. That the defendant is a foreign corporation. Before the writ of attachment shall be executed, a written undertaking on the part of the plaintiff, with sufficient surety, shall be delivered to the officer, to the effect that, if the defendant recover judgment, the plaintiff shall pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the writ of attachment, not exceeding the sum specified in the undertaking, which sum shall not be less than two hundred and fifty dollars. The writ authorizes the attachment of all property of the defendant, includ- ing rights or shares of any association or corporation. Any creditor is entitled to proceed by garnishment against any person (ex- cept a municipal corporation) who shall be indebted to, or have any property whatever, whether real or personal, in his possession or under his control, belonging to such creditor's debtor. In order thereto, either at the time of issuing the summons, or at any time thereafter before final judgment, in any action to recover damages founded upon contract, express or implied, or upon judgment or decree, or at any time after the issuing, in any case, of an execu- tion against property, and before the time when it is returnable, the plaintiff, or some person in his behalf, may make an affidavit, stating that he verily believes that some person, naming him, is indebted to, or has pi-operty, real or personal, in his possession, or under his control, belonging to the defendant in the action or execution, naming him, and that such defendant has not prop- erty liable to execution, sufficient to satisfy the plaintiff's demand; and that the indebtedness or property mentioned in such affidavit is, to the best of the knowledge and belief of the affiant not by law exempt from seizm-e or sale upon execution.^ TERRITORY OF ARIZONA. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfac- tion of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases: — 1 Revised Statutes of Wisconsin, 1878. 708 APPENDIX. 1. In an action upon a contract, express or implied, for the direct payment of money, which contract was made, or is payable, in this Territory, and is not secured by a mortgage, lien, or pledge, upon real or personal property, or if so secured, that such security has been rendered nugatory by the act of the defendant. 2. In an action upon a contract, express or implied, for the direct pay- ment of money, against a defendant not residing in this Teriitory. The clerk of the court shall issue the writ of attachment, upon receiving an affidavit by or on behalf of the plaintiff, showing: 1. That the defendant is indebted to the plaintiff (specifying the amount of such indebtedness over and above all legal set-offs or counter-claims) upon a contract, express or implied, for the direct payment of money, and that such contract was made or is payable in this Territory, and that the payment of the same has not been secured by any mortgage, lien, or pledge -upon real or personal property; or 2. That the defendant is indebted to the plaintiff (specifying the amount of such indebt- edness, as near as may be, over and above all legal set-offs or counter-claims), and that the defendant is a non-resident of this Territory; and 3. That the sum for which the attachment is asked is a bond Jide existing debt due and owing from the defendant to the plaintiff, and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any cred- itor of the defendant. Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, with sufficient sureties, in a sum not less than double the amount claimed by the plaintiff, to the effect that if the defendant recover judgment the plaintiff will pay all costs that may be awarded to the defend- ant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. All property of the defendant, including rights and shares in associations or corporations, may be attached, and garnishees summoned.^ TERRITORY OF DAKOTA. In an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property, the plaintiff, at the time of issuing the summons or at any time afterward, may have the property of the defendant attached as a security for the satisfaction of such judgment as the plaintiff may recover, in the following cases: — 1. Where the defendant is a corporation created by or under the laws of any other Territory, State, government, or country; or, 2. Is not a resident of this Territory; or, 3. Has absconded or concealed himself ; or, 4. Is about to remove any of his property from this Territory ; or, 5. lias assigned, disposed of, secreted, or is about to assign, dispose of, or secrete, any of his property, with intent to defraud creditors. The clerk of the court issues a warrant of attachment, upon the plaintiff giving affidavit and undertaking. 1 Compiled Laws of Arizona, 1877. APPENDIX. 709 The afiBdavit must state, — 1. That a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof; and 2. That the defendant is either a foreign corporation, or not a resident of this Territory, or has departed therefrom with intent to defraud his creditors or to avoid the service of a summons, or keeps himself concealed therein with the like intent, or that the debt was incurred from property obtained under false pretences; or, 3. That the defendant has removed or is about to remove any of his prop- erty from the Territory, with intent to defraud his creditors; or, 4. Has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his property, with the like intent. The undertaking must be on the part of the plaintiff, with sufficient surety, to the effect that if the defendant recover judgment, or the attachment be set aside by order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum named in the undertaking; which must be at least the amount of the claim specified in the affidavit, and in no case less than two hundred and fifty dollars. Under the waiTant of attachment, the sheriff must attach real and personal property, including debts, credits, money, and bank-notes ; and take into his custody all books of accounts, vouchers, evidences of indebtedness, and all papers relating to the property, debts, credits, and effects of the defendant, together with all evidences of his title to real property. The rights or shares of the defendant in the stock of any association or corporation, together with the interest and profits thereon, may also be attached; and property of the defendant in the hands of third persons may be reached by garnishment.^ TERRITORY OF IDAHO. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as security for the satisfac- tion of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases : — 1. In an action upon a contract for the direct payment of money, where the contract is not secured by any mortgage or lien upon real or personal prop- erty, or any pledge of personal property; or, if originally so secured, such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. 2. In an action upon a contract, against a defendant not residing in this Territory. The clerk of the court issues the writ, upon affidavit and undertaking being filed, by or on behalf of the plaintiff. The affidavit must show, — 1. That the defendant is indebted to the plaintiff, specifying the amoimt of such indebtedness over and above all legal set-offs or counter-claims, upon a 1 Revised Codes of Dakota, 1883. 710 APPENDIX. contract for the direct payment of money, and that the payment of the same has not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or, if so secured, that such security has, without any act of the plaintiff, or the person to whom the security was given, become valueless. 2. That the defendant is indebted to the plaintiff, specifying the amount of such indebtedness over and above all legal set-offs or counter-claims, and that the defendant is not a resident of the Territory ; and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant. The undertaking on the part of the plaintiff is in a sum not less than two hundred dollars, nor exceeding the amount claimed by him, with sufficient sureties, to the effect that, if the defendant recover judgment, or if the attach- ment be wrongfully issued, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking. Real and personal property, stocks or shares, or interest in stock and shares, of any corporation or company, and credits, may be attached, and garnishees may be summoned.^ TERRITORY OF MONTANA. The plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant attached, as security for the satisfac- tion of any judgment that may be recovered in the action, unless the defend- ant give good and sufficient security to secure the payment of such judgment. The clerk of the court issues the writ of attachment, upon receiving affi- davit and undertaking. The affidavit must be made by the plaintiff, his agent or attorney, showing that the defendant is indebted to the plaintiff upon a contract, express or implied, for the payment of money, gold dust, or other property then due, which is not secured by a mortgage, lien, or pledge upon real or personal prop- erty; or, if so secured, that the security has become insufficient by the act of the defendant, or by any means has become nugatory. Actions may be commenced, and writs of attachment issued, upon any debt for the payment of money or specific property, before the same shall have become due, when it shall appear by the affidavit, in addition to what is above required, either, — 1. That the defendant is leaving or is about to leave this Territory, taking with him property, money, or other effects which might be. subjected to the payment of the debt, for the purpose of defrauding his creditors; or, 2. Is disposing or is about to dispose of his property, subject to execution, for the purpose of defrauding his creditors. The undertaking must be on the part of the plaintiff, with two or more sufficient sureties, to be approved by the clerk, in a sum not less than double the amount claimed by the plaintiff, to the effect that if the defendant recover 1 Civil Code of Idaho, 1881. APPENDIX. 711 judgment, or if the court shall finally decide that the plaintiff was not entitled to an attachment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages he may sustain by the wrongful suing out of the attachment, not exceeding the sum specified in the undertaking; but, if the amount claimed by the plaintiff equals or exceeds the sum of ten thousand dollars, the undertaking shall only be required in the sum of ten thousand dollars. Rights or shares in the stock of any corporation or company, together with the interest and profits thereon, and all debts due the defendant, and all other property of the defendant not exempt from execution, may be attached, and garnishees may be summoned.^ TEREITORY OF NEW MEXICO. Creditors whose demands amount to fifty dollars or more may sue their debtors in the circuit court, by attachment in the following cases: — 1. When the debtor is not a resident of, nor resides in, this Territory; or, 2. Has concealed himself, or absconded or absented himself fiom his usual place of abode in this Territory, so that the ordinary process of law cannot be passed upon him; or, 3. Is about to remove his property or effects out of this Territory; or has fraudulently concealed or disposed of his property or effects, so as to defraud, hinder, or delay his creditors; or, 4. Is about fraudulently to convey or assign, conceal or dispose of, his property or effects, so as to hinder, delay, or defraud his creditors; or, 5. When the debt was contracted out of this Territory, and the debtor has absconded, or secretly removed his property or effects into the Territory, with the intent to hinder, delay, or defraud his creditors. In order to obtain an attachment, an afiidavit must be made by the plaintiff, or some person for him, and a bond executed. The affidavit must state that the defendant is justly indebted to the plain- tiff, after allowing all just credits and offsets, in a sum to be specified, and on what account ; and that the affiant has good reason to believe, and does believe, the existence of one or more of the causes above recited as entitling the plain- tiff to sue by attachment. The bond must be executed by the plaintiff or some responsible person as principal, and two or more securities, in a sum at least double the amount sworn to, payable to this Ten-itory; conditioned that the plaintiff shall prosecute his action without delay and with effect, and refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue to any defendant or garnishee by reason of the attachment, or any process or judg- ment thereon. This bond may be sued on in the name of the Territoiy, by any party injured. The writ of attachment commands the sheriff to attach the defendant, by all and singular his lands and tenements, goods, moneys, effects, and credits, in whosesoever hands they may be found; and under it garnishees may be 1 Revised Statutes of Montana, 1879. 712 APPENDIX. summoned, who are required to answer on oath written allegations and in- terrogatories. By an act of Dec. 31, 1873, the following additional grounds of attachment were authorized: — 1. Where the defendant is a corporation whose principal office or place of business is out of this Territory, unless such corporation have a designated agent in the Territory, upon whom service of process may be made in suits against the corporation. 2. Where the defendant fraudulently contracted the debt or incurred the obligation respecting which the suit is brought, or obtained credit from the plaintiff by false pretences. By the same act it is provided that notice of garnishment shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks, or other closes in action, due or to become due from the garnishee to the defendant, or belonging to the defendant and in the garnishee's possession or charge, or under his control, at the time of the service of the garnishment, or which may come into his possession or charge, or under his control, or for or on account of which he may become indebted to the defend- ant, between that time and the time of filing his answer. And by said act it is further provided that any debt or legacy due or to become due by an executor or administrator, or any goods, effects, or credits in the hands of an executor or administrator as such, may be attached in his hands by process of garnishment; and in like manner, money, effects, or credits due or belonging, or to become due, to an executor or administrator as such, may be attached in the hands of the debtor or person holding the same.^ TERRITORY OF UTAH. The plaintiff, at the time of issuing the summons, or at any time after- wards, may have the property of the defendant attached as security for the satisfaction of any judgment that may be recovered, unless the defendant give security to pay such judgment, in the following cases: — In an action upon a contract, which is not secured by mortgage, lien, or pledge upon real or personal property situated or being in this Territory, or if so secured, when such security has been rendered nugatory by the act of the defendant; or against a defendant not residing in this Territory; or against a person who has departed or is about to depart from the Territory or county wherein the action is brought; or who stands in defiance of an officer; or con- ceals himself so that process cannot be served on him ; or who is disposing of his property with intent to defraud his creditors. The clerk of the court issues the writ of attachment, upon receiving an affi- davit by or in behalf of the plaintiff, showing that the defendant is indebted to the plaintiff, specifying the nature and amount of such indebtedness, as near as may be, over and above all legal set-offs and counter-claims, and that tlie same has not been secured by any mortgage, lien, or pledge upon real or personal property situate or being in this Territory, or, if so secured, that 1 General Laws of New Mexico, Prince's Compilation, 1880. APPENDIX. 713 the security has been rendered nugatory by the act of the defendant; and that the same is an actual botid fide existing demand, due and owing from the defendant to the plaintiff; and that the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor or creditors of the defendant; and specifying one or more of the above causes of attachment. Before issuing the writ, the clerk shall require a written undertaking on the part of the plaintiff, in a sum not less than two hundred dollars, and not exceeding the amount claimed by the plaintiff, with suflScient sureties, to the effect that, if the defendant recover judgment, the plaintiff w-ill pay all costs that may be awarded to the defendant, and all damages which he may sus- tain by reason of the attachment, not exceeding the sum specified in the undertaking. Under the writ, all descriptions of property may be attached, including rights or shares which the defendant may have in the stock of any corporation or company, together with the interest and profits therein, and all debts due the defendant; and garnishees maybe summoned and charged, not only on account of their own debt to the defendant, but on account of credits in their hands belonging to him.^ TERRITORY OF WASHINGTOX. The plaintiff, at the time of issuing the summons, or at any time after- ward and before judgment, may have the property of the defendant attached, as a security for the satisfaction of such judgment as he may recover. A writ of attachment is issued by the clerk of the court in which the action is pending, whenever the plaintiff, or any one on his behalf, makes and files an afiidavit, and gives a bond; the aflfidavit to allege that a cause of action exists against the defendant, in favor of the plaintiff, and the nature thereof, and that the defendant is indebted to the plaintiff thereon, specifying the amount of said indebtedness, as near as may be, over and above all set-offs and counter-claims, and that the same is not secured by any mortgage or lien upon real or personal property, or any pledge of personal property, or if- originally so secured, such security has, without any act of the plaintiff's, become inadequate. The bond is to be given by the plaintiff, with two or more sureties, in the sum of not less than two hundred dollars, and equal to the amount for which the plaintiff demands judgment; conditioned that the plaintiff will pay all costs that may be adjudged to the defendant, and all damages which he may sustain by reason of the attachment, should the same be wrongful or oppressive. All property of tlie defendant, not exempt from execution, may be attached, including his rights and shares in the stock of .any association or corpora- tion, together with the interest and profits thereon; and garnishees maybe summoned. 2 1 Compiled Laws of Utah, 1876. 2 Code of Washington, 1881. 714 APPENDIX. TERRITORY OF WYOMING. The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant, upon the following grounds : — 1. When the defendant is a foreign corporation, or a non-resident of this Territory; or, 2. Has absconded, "with the intent to defraud his creditors; or, 3. Has left the county of his residence to avoid the service of a summons ; or, 4. So conceals himself that a summons cannot be served upon him; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors ; or, 6. Is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors; or, 7. Has property, or rights in action, which he conceals; or, 8. Has assigned, removed, or disposed of, or is about to dispose of, his prop- erty, or a part thereof, with the intent to defraud his creditors ; or, 9. Fraudulently contracted the debt or incurred the obligation for which suit is about to be or has been brought; or, 10. In cases not exceeding two hundred and fifty dollars, in which the debt is not otherwise secured, and which has not been paid when due, and within ten days thereafter on demand. An order of attachment is made by the clerk of the court in which the action is brought, where there is filed in his office an affidavit of the plaintiff, his agent or attorney, stating, — 1. The nature of the plaintiff's claim; 2. That it is just; 3. The amount which the affiant believes the plaintiff ought to recover; 4. The existence of some one of the above-enumerated grounds for an attachment, or that the affiant has good reason to believe and does believe that some one of those grounds (stating what one) exists. When the ground of attachment is that the defendant is a foreign coi-pora- tion, the order of attachment may be issued without an undertaking; but an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of this Territory, for any claim other than a debt or demand arising upon contract, judgment, or decree. In all other cases, the order of attachment shall not be issued until there has been executed in the clerk's office, by one or more sufficient sureties of the plaintiff, to be approved by the clerk, an undertaking, not exceeding double the amount of the plaintiff's claim, to the effect that the plaintiff shall pay all damages which the defendant may sustain by reason of the attachment, if the order be wrongfully obtained. All property of the defendant, including rights or shares in the stock of any corporation or company, together with the interest and profits therein, and all debts due the defendant, may be attached; and garnishees may be summoned.' J Compiled Laws of Wyoming, 1876. APPENDIX. 715 DISTRICT OF COLUMBIA. This District now comprises only so much of the original ten miles square, as was ceded by the State of Maryland to the United States; within which, by the terms of the act of Congress of February 27, 1801, '■^concerning the District of Columlia " (2 U. S. Statutes at Large, 103), the laws of Maryland, as they existed on that day, were continued in force. Up to June 1, 1866, proceedings by attachment in that part of the District ceded by Maryland, were regulated by the laws of Maryland; but on that day an act of Congress was passed (14 U. S. Statutes at Large, 51), regulating the subject, and practically superseding the Maryland law. Under that act attachments may be issued by the clerk of the Supreme Court of the District, at the commencement or during the pendency of a suit, upon affidavit and undertaking being filed by the plaintiff, his agent or attor- ney; the affidavit to set forth that the plaintiff has a just right to recover against the defendant what he claims in the declaration, and also — 1. That the defendant is a non-resident of the District; or, 2. Evades the service of ordinary process, by concealing himself, or by with- , drawing from the District temporarily ; or, 3. Has removed, or is about to remove some of his property from the Dis- trict, so as to defeat just demands against him. The affidavit must be supported by the testimony of one or more witnesses, showing the grounds upon which the plaintiff, or his agent or attorney, bases his affidavit. The undertaking must be with sufficient sureties, to be approved by the clerk, to make good all costs and damages which the defendant may sustain by reason of the wrongful suing out of the attachment. ATTACHMENTS IN UNITED STATES CIRCUIT AND DISTRICT COURTS. The following are Sections 915 and 916 of the Revised Statutes of the United States: — § 915. In coramon-Iaw causes in the circuit and district courts the plaintiif shall be entitled to similar remedies, by attachment or other process, against the property of the defendant, which are now provided by the laws of the State in which such court is held, for the courts thereof; and such circuit or district courts may, from time to time, by general rules, adopt such State laws as may be in force in the States where they are held, in relation to attach- ments and other process; Provided, That similar preliminary affidavits or proofs, and similar security, as required by such State laws, shall be first furnished by the party seeking such attachment or other remedy. § 916. The party recovering a judgment in any common-law cause in any circuit or district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor, as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by gen- eral rules of such circuit or district court; and such courts may, from time to time, by general rules, adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise. INDEX. INDEX. The Refeeekces are to the Sections. ABANDONMENT, Section of possession of attached property, by the officer, loses the attach- ment 202, 257, 290 by servant or bailee of the officer, loses the lien of the attach- ment, as against a subsequent attacher or an adverse claim- ant 292 e, 360 ABATEMENT, plea in, will lie where a non-resident sues by attachment, when the law allows the writ only to residents 11 will lie where the cause of action does not authorize attach- ment, and where there is a variance between the affidavit and attachment and the complaint . 36 will lie where the plaintiff did not give the legally required bond ll'J will not reach a service of attachment made on Sunday in violation of law 1S7 will not lie, on the ground that the property attached was not the defendant's 196 a when defendant may use it to traverse the allegations of the affidavit _ • • 405, 409 may be resorted to, on account of defects in garnishment process "I'^l " when and how attachment is pleadable in 700, 705 ABOUT, meaning of, in an affidavit alleging that the defendant is about to do some particular act 108 a ABSCONDING DEBTORS, who are regarded as 48-53 ABSENCE, casual and temporary, of a debtor, does not authorize proceeding by attachment ^9 what will authorize it 40-42 is not a convertible term with non-residence 57 720 INDEX. AB SENCE — continued. Section from domicile, may be so prolonged as to justify party's being sued as a non-resident 57, 65 ABSENT DEBTORS, who are regarded as 39-47 notice to, by publication 43G-449 ACCOUNT, action of, may be instituted by attachment 23 ACCOUNT-BOOKS, are not attachable under authority to attach evidences of debt . . 244 d not attachable, unless authorized by statute 249 ADMINISTRATOR, not suable, as such, by attachment 81 unless he make himself personally liable 82 giving bond for attachment, cannot be sued thereon as administra- tor, but must be sued individually 183 of garnishee, judgment against, is not entitled to priority over other debts of the intestate 226, 453 b property in hands of, which will belong to defendant as a distrib- utee, after settlement of accounts, is not attachable .... 251 of officer, may maintain trover for attached effects, for the benefit of the attaching creditor 291 of garnishee, who died before answering, cannot be compelled to take his place and answer 451 a not chargeable as garnishee, before order of distribution or pay- ment, but is so afterward 496, 497 ADMISSION, by an attorney of a corporation, of service of garnishment process thereon, does not authorize the corporation to be proceeded against as garnishee ... 451 6 by garnishee, in his answer, of indebtedness to defendant, should not be made where the garnishee's liability turns upon his having given a negotiable note to defendant 592 AFFIDAVIT, for attachment, under custom of London, is merely of defendant's indebtedness 6 in this country it includes also special grounds for the issue of the writ 6 variance between it and the complaint, cannot be taken advantage of by demurrer 36 may be made by agent of a corporation plaintiff 37 absence or insufficiency of, is a jurisdictional defect, not a mere irregularity, and avoids tlie proceeding 87 cannot be amended, unless amendment be authorized by statute . 87 when insufficient, in ex parte proceedings, to confer jurisdiction, a sale under the attachment confers no title 87 a-89 a is part of, and must appear in, the record 90 when may be filed jjunc /)ro /M?ic 90 requirement of, is met by filing a petition, sworn to, containing tlie allegations required to be made 90 a INDEX. 721 AFFIDAVIT — continued. Section when made on the day of the issue of the writ, will be considered as having been made before the writ was issued, though its language imply that it was made after 90 6 omission of venue in, does not vitiate it 90 c need not be made before the officer issuing the writ, but may be before any officer authorized to administer oaths 90 rf authentication of 91 in a suit by the clerk of a court, in the court of which he is clerk, cannot be sworn to before his deputy 91 a connection of with the suit must appear 92 who may make 93, 93 a when and how made by agent or attorney 93 &, 94, 94 a as to amount and nature of the debt . 95, 96 different descriptions of 97-100 may contain several different grounds of attachment . . . 101, 105 a with several grounds, they should be stated cumulatively .... 101 if any be true, it will sustain the writ . . 101 if any be uncontested, it will suffice . . . 101 if any two are inconsistent with each other, it will vitiate the affidavit 101 when vitiated by stating several grounds disjunctively 101 a when not vitiated thereby _ • • ^^-' qualifying words, contained in the statute, should not be omitted from ; 103 substantial compliance of, with statute, sufficient 103 when should declare the intent of defendant's alleged act ... 103 a when should declare the result of defendant's alleged act . . . . 103 b uncertainty in, will vitiate it 10^ leaving material blank in, vitiates it _ • 104 a not vitiated by the omission of a word, by a clerical mistake, which can be supplied by construction 104 a surplusage in, not inconsistent with the substantial averments, will not vitiate .•••."• * ^^^ may contain two grounds of attachment not inconsistent with each other . 105 a positiveness, knowledge, information, and belief must appear in, as required by statute ■'■Oo substantial compliance with statute, sufficient . 10/ literally following the words of the statute is bad, where, by so doing, perjury could not be assigned 107 a insufficient, cases of meaning in, of the word about _ • ^Oo a if two of the same import be made, the second will be dis- regarded insufficient as to one of two joint debtors, will not justify attach- ment against both _ when may be made before the day of issuing the writ ..... Ill defects in, may be taken advantage of, by motion to quash or dis- solve the attachment ^^" amendment of, when allowed 46 722 INDEX. AGENT, Section of corporation, may make affidavit for attachment 37 of plaintiff, may make such affidavit 93 6, 94 a of railroad company, employed in its office to sell its tickets, cannot be charged as its garnishee 465 a of garnishee, in possession of effects of defendant, the garnishee may be charged therefor 484 money deposited by, in a bank, on an account opened with him, as agent, cannot be the foundation of a judgment against the bank as his garnishee 491 a acting under public authority, but not a public officer, may be gar- nished in respect of money ordered by that authority to be paid to defendant 513 not chargeable as garnishee in respect of money received from his principal to be paid to defendant, but which he has not agreed with defendant to pay to him 514 of a State, cannot be garnished in respect of money held by him in that capacity 516 a not chargeable as garnishee for debt of principal 546 of garnishee, payment by, of garnishee's debt to defendant, in igno- rance of the garnishment, will discharge the garnishee . . . 674 a AGREEMENT, to induce an officer to forbear levying an attachment, is invalid . 188 between garnishee and defendant, made after the garnishment, can- not change garnishee's liability 674 ALTERATION, of writ, dissolves attachment as against subsequent attachers . . 282 so as to put it in legal form, does not excuse officer's failure to keep attached property 296 AMENDMENT, of complaint, where attachment was obtained on a cause of action not authorizing it, gives no vitality to proceedings under that writ, but a new writ must issue 36 a of affidavit for attachment, not allowable unless authorized by statute 87 when admissible 113 of attachment bond 146-148 of writ, so defective as to be void, cannot cut off rights of third par- ties in attached property, acquired after levy 184 a of return of attachment, rules concerning 211-220 of writ, by striking out the name of one of two defendants, or by changing the place to which the writ is returnable, dissolves the attachment as between creditors 282 of declaration, by filing a new count, not appearing by the record to be for the same cause of action as that originally sued on, dissolves the attachment as against subse- quent attachers 282 not altering or increasing demand sued on, does not dissolve attachment 285, 287 inti'oducing new defendants, dissolves the attach- ment as against other attachers 287 INDEX. 723 AMENDMEXT — continued. Section of declai'ation, in the given name of defendant, does not dissolve attachment *287 of answer of garnishee 6.jO AMICUS CURI^, may move to quash attachment for irregularities, semble .... 418 a ANSWER, of corporation, as garnishee, how made 472 what garnishee should state in 629-632 evasion or equivocation in, effect of 633 importance of fulness and explicitness in .....••• • 634 when full and intelligible, the court will protect garnishee from fur- ther interrogatories 63o need not conform to technical rules of pleading 637 if as full as garnishee can make it, will be sufficient 638 need not be confined to matters within garnishee's own knowledge 639 garnishee may be required to make statement in, of his accounts with defendant 6o9 a what garnishee may and may not be required to state in . . . 641-649 garnishee cannot be required to state in, a matter which would deprive him of a defence against his liability to defendant . . 644 nor that he has been guilty of a violation of law 645 nor anything that will impair or impeach his title to real estate . 646 statements of others may be incorporated in, but garnishee is not compellable to use them 649 may be amended, when 650 effect to be given to 651-65o construction to be given to 656-658 judgment on 659 APPEAL, by plaintiff, suspends right of defendant to return of attached prop- erty after dissolution of attachment 428 APPEAR AXCE, by defendant, and plea to the merits, bar objection, after verdict, to the cause of action as not authorizing attachment 36 sued as an absconding debtor, is not proof that the affidavit alleging absconding was false .... 53 a to move for dismissal of attachment for want of juris- diction, is not a submission to the jurisdiction . . 112, 112 a, 144 and plea to the merits, waives defects in the prelimi- nary proceedings ^^^ to an action wrongly brought, is not an appearance to it after the declaration has been amended . . . 112 a is it made by his moving to set aside, dissolve, or quash the attachment? 414 not served, to move to set aside a judgment by default against him, does not authorize a personal judgment against him '*^'* 724 INDEX. ABBITRATION, Section reference to, by plaintiff and defendant, of all demands between them, will dissolve attachment, unless only the demand sued on was referred 288 ASSAULT AND BATTERY, in action for, attachment will not lie 10 ASSIGNEE, in bankruptcy, not chargeable as garnishee, in respect of effects in his hands as such . . . • 511 of note, in respect of which the maker was charged as garnishee of the payee, in a suit in which the assignee was not a party and had no notice of, may recover the amount of the note from the attaching plaintiff ' 529 ■who claimed in the attachment suit the debt in respect of which the garnishee was charged, and judgment was rendered declaring his assignment invalid, cannot afterwards sue the garnishee for that debt 530 of debt, suing his debtor, who has been garnished in respect thereof, is not barred of recovery by the fact of the garnishment . . 703 a ASSIGNMENT, of attached property, may be made by defendant subject to the attachment 222 by dafendant, made after the attachment, cannot defeat it 224 from defendant to himself may be set up by garnishee .... 522 when set up by garnishee, may be impeached for fraud. . . . 523, 524 is not effected by a mere direction to deliver or pay to the supposed assignee, without his knowledge or assent 525 is effected where the appropriation is made by the assignor and ac- cepted by the assignee 526 particular form of, not material 526 equitable, will hold the pi-operty, if notice be given to the garnishee in time to make it known to court 527 is effectual, where notice of it is given to garnishee before attach- ment 528 notified to attaching creditor before attachment, binds creditor to refund to assignee 529 adjudged invalid, when the assignee has been made a party, the judgment binds the garnishee, and bars action against him by the assignee 530 conflicting, cannot be tried in attachment suit 531 garnishee knowing of and failing to set it forth in his answer, the judgment against him will not protect him 717 evidence of, should be furnished by assignee to garnishee . . . 718 notice of, should be given to maker of a note 719 {See Equitaule Assignment.) ASSIGNMENT OF DEBT. (.See Equitable Assignment.) ATTACHMENT, origin of, is in the custom of London 1-3 its nature and distinctive features 4-6 INDEX. 725 ATT AC HMEXT — continued. Section is a special remedy at law, belonging to a court of law .... 4 a differences between attachment under the custom of London and in the United States 5, 6, 7 tendency to enlarge the operation of 7 under the custom, is grounded on actions of debt 9 debt for which issued must be such as will sustain an action at law 9 cannot be grounded on equitable debts 9 in the United States, generally allowed only to creditors .... 10 will not lie in actions for tort 10 may be obtained by non-resident 11 will lie for unliquidated damages arising ex contractu 13-22 but not unless the contract itself afford a rule for ascertaining the damages 23-26 in what cases it will lie, when authorized in action for '' the recov- ery of money " 27 the debt for which it may issue must possess an actual character, and not be dependent on a contingency 27 a when issuable on a debt not due, there must be an actual subsisting debt which will become due by the efflux of time 2S-30 on grounds peculiar to that case, it cannot be obtained on those grounds for a debt already due 33 if a debt already due be combined with it, the attachment is good as to the former, but not as to the latter 33 obtained on affidavit of a debt due, when it was not due, wiU be quashed 33 does not lie in favor of one partner against another, on account of partnership transactions 34 right of creditor to, is not impaired by his holding collateral security for the debt 35 based on a judgment, may be obtained in the court in which the judgment was rendered 35 a variance between it and complaint, is no ground for demurrer . . 36 when obtained on a cause of action not authorizing it, and the de- fendant is not served, it is a nullity 36 a corporation may sue by 37 will lie against one or more of several defendants 37 a against several defendants, may be levied on the property of either, or on their joint property 37 a against absent debtors 39-47 against absconding debtors 48-53 a against debtors concealing themselves 54-56 against non-resident debtors 57-67 against debtors removing their property 68-71 against debtors fraudulently disposing of their property . . . 71a-77a will lie against corporations 78-80 726 INDEX. ATTACHMENT — continued. Section will not lie against representative persons, as such 81 will lie against administrator or executor who makes himself per- sonally liable 82 cannot be issued under any general jurisdiction 83 issue of, is an exercise of jurisdiction 86 issued without affidavit, when one is required by law, is void . 84, 86 absence or insufficiency of affidavit for, is a jurisdictional defect, not a mere irregularity 87 may be dissolved or quashed, for defects in affidavit Il2 may be avoided, when issued without bond, where bond is re- quired 115, 116 issued without bond, will justify officer, unless the defect appear on the face of the writ 117 party causing to issue, and 'officer Issuing, without bond, liable as trespassers US cannot be executed by an officer until the process has come into his hands, though he has information of Its having been issued 1^3 a made returnable to a day and term already past, is void .... 183 b issued by an officer having no legal power to issue it, is void . . 184: if so defective that it is void, a levy under it cannot be cured by amendment, so as to cut off rights of third parties, acquired after the levy 184 a if legal in form, and issued by a court having jurisdiction, will jus- tify officer in executing 185 if officer levy it on property found in the possession of the defendant, he can justify the levy by producing the writ 185 a if the property is found in the possession of a stranger claiming title, the officer must prove that the defendant was indebted to the plaintiff, and that the writ was regularly issued 185 a issued irregularly, will not protect the party who caused its issue . 185 b or without jurisdiction, the plaintiff, when sued as a trespasser, cannot set up as a defence that he returned the property to the defendant, un- less the latter accepted it, but may show that it was sold under an execution against the de- fendant 185 c cannot be executed by an officer, or his deputy, where either is in- terested in the suit, nor by the plaintiff specially deputized thereto by the officer 185 c/ person specially deputed to serve, has all the powers of an officer . 186 may be executed on Sunday, where not prohibited by statute . . 187 if delivered to an officer on Sunday, where by law the service of writs on that day is prohibited, he is not to be regarded as having officially received it on that day 187 authority to levy continues till the return day of the writ . . . . 1 87 a levy of, after return day, is of no force against third persons . . . 187 b levy of, should be made on any property of the defendant which the officer can find 188 agreement to induce officer to omit levy of, is void 188 INDEX. 727 ATTACHMENT — con/iniied. Section officer may demand indemnity before proceeding to levy .... 189 officer taking a writ, witli directions to serve in a particular manner, witliout demanding indemnity, is bomid to serve it, if he can, according to instructions 189 a should be levied on sufficient property 190 should be executed as soon as practicable 191 reasonable diligence in executing should be exercised 191 a no action can be taken under, after judgment . . ... 191 6 execution of, should be a continuous act ... 192 service of, effected by unlawful or fraudulent means, is illegal and void 193 if not conformable to law, creates no lien 194 must be so made as to do no wrong to defendant ... 194 should not be levied on property not liable to attachment .... 195 levied on property not the defendant's, officer is a trespasser . 196, 197 what will amount to a levy of, for which trespass will lie . . . . 198 of goods of a stranger, intermixed with those of defendant, rules concerning 199 officer, in executing, may enter store of third person 200 may not use store of third person to keep at- tached property in 200 may not eject defendant 200 must demand admittance before •sing force . 200 may not force an entrance into a dwelling- house, unless property of a stranger be se- creted therein 200 return of, rules concerning 204-220 mere issue of, has no force against defendant's property, but a levy is necessary 221 lodgment of, in hands of an officer, has no force as against the de- fendant's property 221 effect of, dates from time of levy 221 effect and office of levy of 221-228 precedence of, in relation to judgments and execution .... 229, 230 as to time of service 231 of real estate, doctrines concerning 232-242 of personal property, doctrines concerning 244-259 simultaneous, successive, conflicting, and fraudulent, doctrines con- cerning • • • 260-289 caused by a debtor, without the knowledge of his creditor, when good 281 dissolved, as to subsequent attachers, by alteration of writ, or chang- ing or increasing demand 282 lien of, is lost, as against other attachers or hand fitle purchasers, by letting the property remain in defendant's possession, but not as against the defendant 292 a notice of, to another officer attaching effects already attached, effect of 292 6 effect upon, of officer's taking the property into a foreign jurisdic- tion 292 d 728 INDEX. ATTACHMENT — continued. Section effect upon, of officer's servant abandoning possession of attached property 292 e improvidently issued, how defeated 397-410 dissolution of, how produced, and effect of 411-431 maybe dissolved as to subsequent attachments, but remain in force as against defendant 422, 423 when a defence, and the manner of pleading it by garnishee, when sued by the attachment defendant 699-723 malicious, action for 724-745 ATTACHMENT BOND, nature of 114 may be given by corporation plaintiff, without express statutory authority 114 6 when required to be given before the attachment issues, a failure so to give it is fatal 115, 116 omission to give, is not cured by a deposit of money in lieu of it . 115 if dated after the writ, it may be shown to have been so dated by mistake 116 a insufficiency of, does not make the officer executing the writ a tres- passer ' 117 but the plaintiff, and the officer issuing the writ, are, in such case, liable as trespassers 118 must appear iiPthe record 119 omission to recite in the writ that a bond was given, will not vitiate the attachment 119 approval of officer need not be indorsed on 120 his receiving and filing it, estops him from denying that he approved it 120 the issue of the writ is, as against the defendant, an approval by the clerk 120 the approval of the clerk is but prima facie evidence of the sufficiency of the sureties 120 given by a clerk of court suing by attachment in his own court, can- not be approved by his deputy 120 must be actually executed and delivered before the writ issues . . 121 when executed and delivered, no agreement between the plaintiff and the officer, as to any condition subsequent upon which it is to be unavailable, is good 121 a required to be executed in the office of the clerk, must be executed in his presence 121 b accidental destruction of, before its return into court, will not author- ize the quashing of the writ 122 failure of officer to return it into court, will not discharge the at- tachment, if the plaintiff be not to blame 122 effect of recitals in, as showing when it was given 123 sufficiency of, may be questioned 124 if not such as the law requires, it is the same as if none were given 124 substantially complying with the statute is sufficient 124 objections to, must be made before pleading to the merits . . . 124 insolvency of surety in, may be taken advantage of after pleading 124 INDEX. 729 ATTACHMENT BO^H) — continued. Section omission from, of a word, -will not vitiate it, if, by looking at the whole instrument and the statute, it is apparent what word was intended to be inserted 124 defect in, apparent on its face, will sustain motion to quash the attachment 124 a defect in, which must be sustained by evidence, must be pleaded . 124 a if required to be in a stated penalty, the execution of a stipulation or a covenant, without a penalty, is not sufficient 125 where statute, in one part, prescribes the terras of the condition, and in another part sets forth the form of the condition, the form must be followed 126 misstatement in, of the court in which the suit is brought, is a fatal error 127 but not a misrecital of the term of the court 127 date in, is not necessary, unless required by statute 128 insufficient description in, of the parties or the suit, will vitiate it . 129 blank in the penalty of, vitiates the bond 129 a the place where the name of the surety should be does not vitiate it 129 a addition in, of terms not required, will not vitiate it 130 if required to be given by the plaintiff, and no law authorizes it to be given by another, no other can give it 131 given by one as agent of the plaintiff, but having no authority to act as such, and signed by sufficient sureties, is sufficient where the law did not require the plaintiff to make the bond . . . 131 given by an attorney at law, conditioned that he should pay all costs, &c., in case he should be cast, is bad 131 when authorized to be given by agent or attorney, it may be given by an attorney at law 132 purporting to be the act of the plaintiff, by an attorney in fact, it will not be held to be a nullity, because no power of attorney is produced 133 in such case, the authority will be presumed on the hearing of a mo- tion to quash 133 authority of attorney must be questioned by plea, not by motion . 133 ratification of, by party whose name is used, effect of 134 where sureties are required by the law, without the number being stated, one will be sufficient 134 a if statute require two good and sufficient sureties in at least double the debt or sum demanded, and each of two justify in an amount equal to that sworn to, it is sufficient 134 6 sureties in, must be good for double the debt sworn to, where that is required by law, and if found not so, the plaintiff cannot reduce his demand, by amendment, so as to make it one-half of the amount for which they are good 134 c residence of sureties in, need not be stated 135 given in a suit by a copartnership, the firm name may be signed by one of the firm, but not where he assumes only an individual obligation 136 who should be named as obligees in 137 730 INDEX. ATTACHMENT BO^I) — continued. Section may be in a greater sum than is required by law, but not in a less 135 where the attachment is issued without an oath stating the amount actually sued for, the bond must be in double the amount of damages stated in the writ, in assumpsit; in debt, in double the amount of the debt stated in the writ 140 where correct in amount, in reference to the sum sworn to, the attachment will not be invalidated by the plaintiff's claiming in his petition more than that sworn to 141 if a sum be sworn to as due, " besides interest, damages," &c., the amount named is the criterion of the amount of the bond . . 141 if plaintiff claim a certain sum, with interest at a designated rate, from a given date, or name a sum as interest, the amount of interest is a part of the sum constituting the measure of the amount of the bond 141 misrecital in, of the amount sworn to, making the amount of the bond appear less than double the amount sued for, will not vitiate the bond 142 defect in, cannot be taken advantage of by a subsequent attacher . 143 exception to, on account of defects in, must be taken in limine . . 144 defects in, how affected by appearance of defendant, and his plea to the merits • 144 cannot be taken advantage of in appellate court .... 144 insolvency of sureties in, cannot authorize a requirement of addi- tional security, unless so provided by law 145 cannot be amended, except under statutory authority 146 defective, may be amended by the substitution of a new and perfect one, where the law authorizes amendment of bond .... 147 where the law authorizes amendment, a defect is not cause for quash- ing the writ, until opportunity is given for amendment . . . 147 application to amend, must contemplate the removal of all objections to the bond 148 amended, is substituted for that originally given, and sustains the attachment ab initio 148 a new surety in, may be substituted, where the plaintiff needs the testimony of a surety 149 liability of obligors in, to defendant, is not impaired by errors and defects in the bond 150 though taken after the issue of the writ, there is no defence to the obligors 150 omission from, of part of the required condition, does not invalidate the bond: it is good as far as it goes 150 executed without being required by law, is yet good as a common- law bond 151 if required to be approved by the court, and it be approved by a judge in vacation, it is good as a common-law bond .... 151 obligation of, extends on to the final determination of the suit . . 152 execution of, does not supersede action for malicious attachment . 154 is not merely a security for what may be recovered in an action for malicious attachment 155 INDEX. 731 ATTACHMENT BO'S!) — co7itmued. Section recovery on, is not restricted to such damages as may be recovered in an action for malicious prosecution, but will embrace actual^ _ damage sustained ^^^~]ll action on, can be maintained only by the defendant 10- defendant's right of action on, for injuring, detaining, or convert- ing property, passes to his assignee in bankruptcy, but not for injury to reputation, credit, or business 162 ■where defendant was served, cannot be sustained until the attach- ment shall have been discharged, but may be, where the proceedings are ex parle, after the plaintiff has obtained judg- . 1G2 a meut in favor of several defendants, who may sue on • • -lo-s to maintain suit on, not necessary to get order of court to deliver bond to defendant • sureties in, liable only in reference to the particular writ for obtam- ing which it was given 1^5 are entitled to benefit of all payments of costs or dam- ages made by the principal 165 a to maintain action on, it is not necessary to recover damages first ^^^ in a distinct action ' ' ' ' \ where suit may be maintained on, without previous recovery of damages in a distinct action, the sureties may be sued jomtly with the principal • " sureties in, not liable under a judgment for damages, recovered ^ against principal alone ^ debt is proper form of action on , " " ' * in action on, the declaration must show that the attachment was wrongfully sued out, and what damages plaintiff has sus- tained ^pQ how breaches of , should be assigned ^ \/ u* recital iu condition of, that plaintiff had issued a writ of attach- ment against defendant, estops the obligors from denying that the attachment was sued out ,* \.'i* action on, does not lie for mere failure to prosecute the attach- ^^^^ ment i i • t •* may be sued on by defendant, where judgment was rendered m his favor on the merits, though he did not put in issue the truth ^__^ of the affidavit , * . ', ^ , ' ' ^ in action on, where there has been no trial of the rightfulness of the attachment, the obligors may show, in defence, that the plaintiff had good cause to believe that the alleged grounds for ^^^ ^ attachment were true .'''■'. dama-es under, may be set off against the plaintiff's action against ^ the attachment defendant -,'. ^i \ ' ' in action on, where the attachment suit was ex parte, what the dec- laration must allege • ■where given to obtain an orifjinal attachment, the obligor cannot defend by showing that, when he obtained the attachment, facts existed which would ^^ have justified an a/ici7/ar^ attachment . . ... 1'- 732 INDEX. ATTACHMENT BO^B — contmued. Section in action on, where the attaching plaintiff, in obtaining the attach- ment, complied with all the requirements of the law, the defendant must show that it was wrong- fully obtained 173 ^ the failure of the attaching plaintiff to sustain his action is prima facie evidence to sustain the action on the bond, but not conclusive that the attach- ment was wrongfully obtained 173 if the attachment suit was terminated by a finding in favor of the defendant, on an issue as to the truth of the facts alleged as the ground for the attach- ment, the judgment will conclusively establish that the attachment was wrongfully obtained .... 173 if the attachment plaintiff recovered a less sum than the law authorized an attachment to issue for, it is complete evidence that the attachment was wrong- fully obtained 173 it is no defence that the return on the attachment does not show that a levy was made, if a levy de facto was made 173 a it is no justification or mitigation that the claim sued on was a just one, if the statutory ground for attach- ment did not exist 173 o the question of good faith, or probable cause, is not involved , 174 actual damage may be recovered 174 not necessary for the attachment defendant to show that he has paid the actual damages sustained . . 174 special damages are not recoverable under general averment of damages; but they must be specially averred 174 what are actual damages that may be recovered 175-181 a liability of attachment plaintiff on, exists, as well where the at- tachment is sued out by his attorney, as where sued out by himself 182 an administrator giving, is liable thereon individually .... 183 ATTORNEY AT LAW, may make affidavit for attachment 94 may give attachment bond 132 authority of, to give attachment bond, will be presumed, on a motion to quash or dissolve attachment for insufficiency of bond, but may be questioned by plea 133 showing his want of authority to execute the bond, will not abate the action, unless he had no authority to institute the suit, and the suit is not prosecuted with the authority or consent of the plaintiff 133 money paid to, on a claim in his hands for collection, cannot be levied on as the property of his client 246 cannot admit service of garnishment process on a corporation, so as to authorize it to be charged as garnishee 451 b INDEX. 733 ATTORNEY AT 1,A.V^ — continued. Section may be garnished 464, 515 canuot be charged as garnishee, in respect of a claim iii his hands for collection 481 to what extent he may, as garnishee, be required to disclose mat- ters that lay between his client and himself 641 AUDITOR, of a State cannot be garnished on account of money ordered by the legislature to be paid to a party 516 a B. BAIL, defendant may give, and dissolve attachment 312-317 when given by defendant, he may interpose to prevent judgment against garnishee 658 c BAIL-BOXD, may be given at any time before judgment 312 given where no attachment was issued, no judgment can be ren- dered on it 312 a can be given only by defendant, unless a statute authorize a third party to give it 313 no consideration need be inserted therein 313 a given to officer or his successor, may be sued on by the officer after be ceases to be such, or by his successor 313 h in taking, officer is not the agent of the plaintiff 314 if terms of, are in substantial compliance with the statute, it is suf- ficient 314 a cannot be given by one of two defendants to discharge his separate effects, unless bail and appearance be entered for both, semble . 315 obligors in, cannot object to its validity because only one surety signed it, when the statute required more than ono .... 316 new sureties in, cannot be required, because of the insolvency of those first taken, unless statute authorize it 316 a effect of giving 317-321 after giving, the property is no longer under control of the court . 321 is available to plaintiff, only for satisfaction of such judgment as he may recover 322 to recover upon, it is not necessary that the judgment in the attach- ment suit should express that it is with privilege on the prop- erty attached 322 a with condition in the alternative, for payment of the debt, or for the value of the property, sureties cannot restrict the judgment on the bond to the value, but must pay the debt 322 b obligation of, what will not discharge 323 tender by surety in, of the amount of the judgment recovered against him, and refusal thereof by plaintiff, will discharge the surety 323 a sureties in, when released by the discharge of defendant in bank- ruptcy 323 b may be sued on the bond, without issuing execution against the principal 324 734 INDEX. BAIL-BOND — continued. Section in action upon, if plaintiff enter a nol. pros, as to one of the princi- pals, and take judgment against the other and the sureties, it discharges the sureties 325 joinder of a new defendant in the action in -which the bond was given, discharges sureties in 325 failure to recover against some of several defendants discharges sureties in 325 sureties in, are discharged by change of plaintiffs in the action without sureties' consent 32.'5 a BAILMENT OF ATTACHED PROPERTY, nature and terms of 844-348 bailee is the servant of the officer 349 does not destroy the lien of the attachment 351, 352 officer may retake property from bailee 356, 357 if bailee let the property go back into defendant's hands, or aban- don it, the attachment is dissolved 359, 360 liability of officer for fidelity and pecuniary ability of bailee . . 361-304 officer's liability to defendant for bailed property 365 rights of bailee in the property 363-369 duties of bailee in regard to the property 370 remedies of officer for a disturbance of his possession of attached property 371 remedies of officer against bailee 372 officer has no right of action against bailee, until after demand on him 373 execution under which demand is made must be regular .... 375 demand on bailee need not be personal 376 bailee must be informed that the property is demanded for the pur- pose of being subjected to execution 377 demand upon one of several bailees, sufficient 378 form of action against bailee 379 what will establish conversion by bailee 880 defences by bailee 881-392 measure of recovery against bailee 393-395 judgment against bailee is discharged by satisfaction of that against defendant 396 BAILOR, property of, in the hands of a bailee for hire, cannot be attached during the term of the bailment 245 BANK, cannot be charged as garnishee of a depositor who deposits money as agent with it 491 a BANK-NOTES, may be attached 244 current as money, garnishee may be charged in respect of, but not where they have been presented for payment and refused . . 481 BANKRUPTCY, defendant's discharge in, releases sureties in bail-bond .... 323 h releases sureties in delivery bond • . . 341 h of defendant, does not dissolve attachment lien 425 assignee in, cannot be charged as garnishee of bankrupt ... 511 INDEX. 735 BILL OF LADING, SecUoa in action founded on, attachment will lie, whether the goods were not delivered, or were delivered in a damaged condition . . 13 BLANK, material, in an affidavit for attachment, vitiates it 104 a in the penalty of attachment bond, vitiates it ... . 129 a in attachment bond, where the name of surety should be, does not vitiate the bond 129 a c. CAPTLTvE, by a hostile force, of that part of an officer's precinct in which he had attached property, will not excuse his failure to have the prop- erty forthcoming on execution, unless 298 CAUSE OF ACTION, for which attachment will lie 9-34 if one for which attachment will not lie, the defect cannot be reached by demurrer, but by motion to dissolve, or by plea in abate- ment, and no advantage can be taken of the defect, after ver- dict, where the defendant appears and pleads to the merits . 36 not authorizing an attachment, if attachment be obtained on, and the defendant is not served with process, the attachment is a nullity 36 a defendant must have, against garnishee, in order to charge the latter 541 CHANGE OF DEMAND, in attachment suit, will dissolve attachment as to subsequent attach- ing creditors 282 CHOSE IN ACTION, husband's interest in that of wife, can it be attached? .... 247 holder of, for collection, may sue thereon, though he has been gar- nished, where the statute authorizes garnishee to be charged on account thereof 453 a garnishee not chargeable for 481 equitably assigned, cannot be attached for debt of assignor . . 528, 604 may be assigned 603 CHRISTMAS, is not dies non juridicus 187 CLAIMANT, of debt, in respect of which it is sought to charge a garnishee, can- not intervene after the plaintiff has abandoned all right to charge the garnishee 460 a of debt, is barred from suing garnishee on it, when he claimed it in the attachment suit, and his claim was adjudged invalid . . 530 CLERK OF COURT, cannot make affidavit for attachment before his deputy .... 91 a issuing an attachment without bond, is liable as a trespasser to de- fendant, if the writ be levied on his property 118 his approval of an attachment bond need not be indorsed thereon . 120 736 INDEX. CLERK OF COJTRT — continued. Section receiving and filing attachment bond, estops him from denying that he approved it 120 suing by attachment in his own court, cannot have the attachment bond approved by his own deputy 120 money in hands of, virlute officii, not attachable 251 not subject to garnishment in respect thereof 509 CO-DEBTORS, jointly and severally liable, any one may be garnished and sub- jected to judgment for the whole debt 560 payment by one of, after garnishment of the other, will discharge the garnishee 560 jointly liable for a debt, one cannot be charged as garnishee with- out joining the others 561 but if part are out of the jurisdiction, those garnished may be charged 562 if part are in a foreign country, those residing in this country can- not be charged as garnishees 561 COLLATERAL SECURITY, the holding of, does not prevent creditor suing by attachment . . 35 COLLISIOX, damages for, not recoverable by attachment 10 COMMON CARRIER, may be charged as garnishee 518 COMPTROLLER, of a State, cannot be garnished on account of salary payable to a State officer, or on account of bonds deposited with him by a foreign insurance company 516 a CONCEALMENT, of himself, by a debtor, a ground of attachment 54:-56 CONFESSION OF JUDGMENT, by defendant, before the time when the action would be regularly triable, dissolves lien of jjlaintiff's attachment, as against sub- sequent attachers 262 CONFLICTING ATTACHMENTS, when and how one of several, may attach and set aside others . 272-275 CONFUSION OF GOODS, doctrine of, in regard to attachments 199 CONSIDERATION, failure of, may be pleaded by garnishee against his liability to de- fendant 679 CONSIGNEE, having privilege on consignment, is entitled to have his claim on the property paid, before it can be attached in suit against the consignor 245 may maintain replevin in such case, against officer, for taking the property 245 acquires no title to property shipped to him, while it is in transitu : and it may, while so, be attached for consignor's debt . . . 246 INDEX. 737 CONSPIRACY, _ _ Section action for, may be maintained by a creditor against his debtor and a third person, for fraudulent attachment 277 CONSTRUCTION, to be given to garnishee's answer 65G-653 CONSTRUCTIVE POSSESSION, of personal property, by garnishee, will not suffice to make him liable 483 CONTINGENCY, debt dependent on, will not sustain an attachment 24 will not authorize judgment against a gar- nishee 551, 552 CONTRACT, nature of, between garnishee and defendant, cannot be changed by garnishment 517-520 CORAM NON JUDICE, proceedings are, where no property is attached and defendant is not served • 5 CORPORATION, may sue by attachment 37 agent of, may make affidavit 37 is considered an inhabitant of the State in which it was incorporated 79 foreign, may be sued by attachment as a non-resident .... 79 foreign, character of, is determined by the place where its charter was granted 80 ■where chartered by two or more States, it is a domestic corporation in each 80 plaintiff, may give attachment bond without express statutory authority HI & stock in, not attachable, without express statute 244 when authority is given by law to attach, the authority ex- tends only to corporations in that State 244 how to be attached 259 civil death of, dissolves attachment 424 cannot be charged as garnishee, on the basis of an admission, by its attorney, of service of garnishment process 451 h domestic, may be garnished 469 how served wdth gai'nishment process 470 liability of, as garnishee governed by same rules as individuals . 471 not liable as garnishee of one on account of his being a stockholder 471 not liable as garnishee of one on account of his holding a certificate of membership therein 471 how to answer as garnishee 472 foreign, when may be garnished 478 chartered in several States, may be garnished in any of them . . 479 municipal, cannot be garnished 516 taxes due to, not attachable 516 COSTS, cannot be deducted from proceeds of attached property, not the defendant's 196 c 47 738 INDEX. COSTS —continued. Section garuishee not liable for, -when he does not assume the attitude of a litigant 662 aliter, if he denies indebtedness, and is found indebted .... 662 COUNTY TREASURER, cannot be charged as garnishee of one for whom he holds money to pay him for his services as a juror 493 COURT OF EQUITY, will not interfere to set aside a judgment by default against a gar- nishee, unless it appear that the judgment is unjust, and was obtained without his fault or neglect 658 e COVENANT, is not sufficient as an attachment bond, where the statute requires a bond with a stated penalty 125 CREDIT, is the correlative of debt 544 is that upon which attachment operates when a debtor of defendant is garnished 544 of defendant, sought to be reached by garnishment, must be both legally and equitably due him 602 CREDITOR, who is, that may sue by attachment 12-26 who has received property in pledge for his debt, may attach without returning the pledge 35 may sue any one or more of several debtors by attachment ... 37 a first attaching, may sue second attaching creditor for proceeds of attached property 429 attaching goods as the defendant's, with knowledge that another party has an interest therein, is bound to pay such party his proportion of the money recovered under the attachment, not- withstanding the judgment of the court decreeing the whole to the plaintiff 529 CREDITOR'S BILL, can it be maintained by an attaching creditor ? 225 CUSTODIA LEGIS, property in, cannot be attached 251, 267, 331 CUSTODY OF ATTACHED PROPERTY, must be continued by the officer 290 right of officer to, rests upon a special property in the attached effects 291 what diligence in preserving, is required of officer 292 should not be allowed to the defendant 292 a right of officer to, is lost if he suffer the attached effects to be inter- mingled with others of like kind previously attached by another officer 292 c is not lost by the officer's removing attached effects into a foreign jurisdiction for safe-keeping 292 d is not lost by placing the effects in the hands of an asrent or servant of the officer 292 e INDEX. 739 CUSTODY OF ATTACHED FROVERTY — continued. section right of officer to, is lost, if the officer's servant or agent abandon the property, so far as subsequent attachers and adverse chiimants are concerned . . . 292 e, 360 officer's failure to keep, what will excuse 294 what will not excuse 295-306 CUSTOM OF LONDON, is the origin of the proceeding by attachment in the United States . 1 of foreign attachment, defined 1 differences between foreign attachment under the custom, and com- mon-law proceedings 4 differences between the same and the proceeding by attachment in the United States 5 D. DAMAGES, unliquidated, arising ex contractu, will sustain attachment, if the contract furnish a standard by which they may be ascertained 13-23 but not where such is not the case 32-34 what may be recovered in suit on attachment bond 175-182 nominal, only, can be recovered by one officer against another, for the taking of attached property by the latter from the former, where the former is not liable for it to the plaintiff for wliom he attached it 268 to attached property, can officers be sued by defendant therefor, while the attachment is pending ? 306 rule of, in action against officer for failing to procftice property to meet execution 308 against officer for failing to have attached property forthcoming on execution 309, 310 claim against garnishee for unliquidated, will not charge him . . 518 rule of, in actions for malicious attachment 745 DAY, fractions of, considered in determining priority of right among at- taching creditors -"1 where several writs are served on the same, and nothing in the offi- cer's returns shows the priority among them, they may be pre- sumed to have been served at the same time 265 DEATH, of defendant, when it discharges sureties in a delivery bond . . 341 6 effect on attachment 4-"- suit brought after, is void 423 of garnishee, after his answer, arrests all proceedings against him . 658 bb of defendant, before judgment, when maybe set up to prevent judg- ment against garnishee "^° DEBT, action of, is foundation of attachment by the custom of London . 9 nature of, for which attachment may be obtained in this country . 13-23 must be actual, and not merely possible and contingent .... 27 a not due, when may be proceeded on by attachment .... 28-33 a 740 INDEX. DEBT — continued. Section claimant of, where the debtor has been garnished, cannot intervene in the attachment suit where the plaintiff therein has aban- doned all claim against the garnishee . . . '. 460 a of garnishee, to defendant, effect of garnishment upon defendant's rights in ^^2 of plaintiff to defendant, plaintiff may attach in his own hands . ^ 543 for which garnishee may be charged 545-547 to an administrator, for property purchased at administrator's sale cannot be attached for his individual debt 546 of garnishee, must be payable in money 550 must be absolutely payable, and not dependent on any contingency 551 dependent on contingency, what is 552 depending on condition precedent to be performed by defendant, garnishee cannot be charged for 553 not yet payable, may be attached 557 but it must be a certain debt, which will become payable upon the lapse of time 559 DEBTOR, of a decedent, cannot be charged as garnishee, in a proceeding against the decedent's administrator 545 a DEBTORS, several, any one or more may be proceeded against by attachment, without so proceeding against the others 37 a absent, abscondiijg, concealed, and non-resident 39-08 removing their property 69-71 fraudulently disposing of their property 72-77 a who fraudulently contracted the debt, or incurred the obligation sued on 77 c DECEDENT, debtor of, cannot be charged as garnishee, in a proceeding against the decedent's administrator 545 a DEFAULT, judgment by, against garnishee, effect of 658 e how set aside 658 e may, in suit by defendant against garnishee, be shown by parol proof to have been for the same debt sued on 716 DEFECTS, in garnishment process, may be taken advantage of by motion to quash, or by plea in abatement 451 d DEFENCE, garnishee may make any, against the garnishment, which he might make if sued by defendant 672 interposed by the garnishee, must be such as would avail in an action by defendant against him 682 where attachment is, and manner of pleading it 699-723 INDEX. 741 DEFENDANT, Section may, in the United States, appear and defend without giving special bail 5 appearance to the action by, when sued as an absconding debtor, is not proof that he had not absconded 53 a personally served, or appearing to action, makes the suit mainly one 171 personam 87 by appearing, and not questioning the attachment proceeding, the attachment will be valid, though the affidavit be defective . . 87 appearance of, when not served, to move for a dismissal of the attachment for want of jurisdiction, is not a submission to the jurisdiction 112, 144 appearance by, and plea to the merits, waives defects in the prelimi- nary proceedings 112 to an action wrongly brought, is not an appearance to it after declaration has been amended . . . 112 a giving assent to a levy on property not liable to attachment, vali- dates the levy 105 cannot plead, in abatement of the action, that the attached property was not his 196 a judgment in favor of, destroys the lien of an attachment . . . 228, 413 introduction of new, or substitution of another, after levy, dissolves attachment as against subsequent attachers 287 cannot have attachment dissolved, because the officer, with plain- tiff's consent, let the attached property pass out of his posses- sion 290 should not be allowed to retain possession of attached effects, unless authorized by law 292 a should not be appointed agent of the officer to keep possession of attached effects 292 o use of attached effects by, when will not destroy the attachment lieu 292 a death of, when it discharges sureties in delivery bond 341 6 appearance by, to move to set aside, dissolve, or quash the attach- ment, is it an appearance to the action ? 414 death of, effect on attachment 422 before suit brought, makes the suit void 423 when he may recover back from plaintiff the proceeds of attached property, where the plaintiff's judgment is reversed .... 430 one of several, cannot be summoned as garnishee of the others . . 465 a may be garnished, in respect of money due from hun, as executor, to him individually, where the law allows garnishment of an executor 465 b rights of, in debt of garnishee to him, how affected by the garnish- ment 542 may interpose to prevent a judgment against the garnishee, when 658 c death of, before judgment against him in the attachment suit, may be set up to prevent judgment against garnishee 698 DELIVERY BOND, may be given for property attached 327 given when not authorized by statute, or in terms variant from those prescribed, is good as a common-law bond 327 a 742 INDEX. DELIVERY BO'^D — continued. Section may be taken in cases of garnishment 327 b no set form of Avords necessary to constitute 328 addition to, of terms not required by statute, does not invalidate 329 interlineation in, without surety's consent or knowledge, when it does not invalidate the bond 329 a difference between it and bailment of attached property, and between it and bail-bond 330, 331 does not discharge the lien of the attachment 331 by executing, defendant acknowledges notice of suit 332 cannot be given by any but one authorized by statute 333 when given by a person other than defendant, his relations to the defendant 333 a calling for delivery of property at a specified place, no demand necessary 334 when given for the delivery of property within a stipulated time after judgment for plaintiff in the attachment suit, no order that the judgment shall be a lien on the attached property, or directing a sale of the property, is necessary to sustain action on the bond 334 surety in, how he may exonerate himself 335 demand for property under, is not necessary where the defendant has removed the property out of the jurisdiction of the court . 335 a signers of, cannot object that it is not their deed, because it was written over their signatures in blank 336 sureties in, not responsible where they signed it with the under- standing that others were to sign it as sureties who did not do so 336 obligors in, cannot object to the validity of the bond, because they signed it as principals, when the statute required sureties . . 336 sureties in, may move to quash the attachment, .semWe 336 a given by one having a lien on the property, his lien is not devested . 337 when party to, may be made liable 338 what will not discharge obligors in 339 given by party other than defendant, claiming to be the owner of the property, he must deliver the property, and then claim it . 340 liability on, is fixed by final judgment against the defendant . . 340 a third party claiming the property cannot maintain action on . . 340 b obligors in, if prevented by act of God, are excused from delivery . 341 if obligors in, are, through the instrumentality of the attachment plaintiff, prevented from delivering the jjroperty, no action will lie against them 341 a sureties in, are released by dissolution of the attachment .... 341 b judgment against sureties in, cannot be rendered after the attach- ment is dissolved 341 b cannot be enforced, where delivery of the property has been made by law impossible 341 c not enforceable against sureties, when the property has been taken from them by an officer under a junior attachment, and deliv- ered to the plaintiff therein 341 d measure of recovery on 342 INDEX. 743 DELIVERY BOli^D — continued. Section one joint obligor in, may, if he pay the whole judgment recovered on the bond, demand contribution from his co-obligors . . . 34:) DEMAND, for property of a stranger attached, is not necessary to make the officer a trespasser 197 must be made, for entrance into a store, to attach property therein, before forcing an entrance ^00 must be made on attaching officer, on execution, for attached prop- erty, in order to fix his liability therefor 305 on sureties in delivery bond, not necessary when the property has been removed beyond the jurisdiction of the court .... 335 a on receiptor of attached property, when necessary 373 DEMURRER, to declaration will not lie, where the cause of action is one for which attachment may not be issued, nor for a variance be- tween the affidavit and attachment and the complaint ... 36 DEPUTY, of a clerk of court, cannot swear his principal to the affidavit for obtaining an attachment in his court 91 a cannot approve the attachment bond of his principal in such case . 120 DEVISEE, of real estate charged with a legacy, may be held as garnishee of the legatee in respect of the legacy 500 DILIGENCE, reasonable, officer bound only to, in making a levy 191 a DISBURSING OFFICER, of government, not chargeable as garnishee, in respect of money in his hands to be paid to defendant 512 DISSOLUTION OF ATTACHMENT, I. As between Plaintiff' and Defendant. is not produced by failure of officer to return into court the attach- ment bond, if the bond be accidentally destroyed, or if no blame be chargeable to the plaintiff 122 is produced by failure of officer to take bond before the issue of the writ 123 on motion for, because the bond for attachment was executed in plaintiff's name by an attorney in fact, the attorney's author- ity is presumed 133 is not produced by failure of each of two sureties in the attachment bond justifying in an amount equal to that sworn to, where the bond was required to be in double that amount .... 1346 is produced by failure of officer to make return on or before return day 204 is not produced by the officer's removing the attached property, for safe-keeping, into a foreign jurisdiction 292 d 744 INDEX. DISSOLUTION OF ATTACHMENT — conimuec/. Section is not produced by a wrong-doer's taking tlie attached property out of the officer's possession 297 is produced by defendant's executing bail bond 317 is not produced by defendant's executing delivery bond .... 331 discharges the obligation of sureties in delivery bond 341 b may be procured where it is shown that the attachment was im- , providently issued 400-405, 407-409 is produced by final judgment for defendant 413 may be procured by motion 415 motion for, what it should present 415 is not procurable on account of misrecital in the writ of the court to which it is returnable 416 is produced by issuing the writ on Sunday, where that fact appears on the face of the writ 417 on motion for, what the defendant cannot show 418 motion for, may be made by an amicus curice, semble 418 a may not be made by one not a party to the record . . . 419 may be made by surety in delivery bond 419 on account of irregularities, it is within the discretion of the court to entertain it • . 420 refused by the court on motion, may be made at final hearing . . 421 is produced by death of defendant 422, 423 is not produced by bankruptcy of defendant 425 as to surplus, by a sale, by order of court, of attached effects, for a greater sum than that needed to satisfy the debt 431 II. As between different Attackers. is not produced, in favor of subsequent attacher, through defect in bond of prior attacher 143 is produced, as against subsequent attacher, by failure of officer to make due return of prior attachment 262 as against subsequent attacher, by failure of prior attacher to obtain judgment and execution, and duly charging attached property therewith . . . 262 is not produced, as to subsequent attacher, by irregularities in pro- ceedings of prior attacher 262 may be insisted on by subsequent attacher, where the prior attach- ment was based on fraudulent or fictitious demands . . . 274, 275 is produced by amendment of writ of prior attacher, by striking out the name of one of two defendants ; by chang- ing the place to which the writ is made returnable; or by changing or increasing the demand of prior attacher 282 as to subsequent attachers, by the prior attacher's making a settlement of all accounts with defend- ant, and taking judgment by consent for a balance found, where the settlement included demands not sued on 283 as to subsequent attacher, by amending the writ of prior attacher, increasing the amount, though the mistake in the writ was merely clerical .... 284 INDEX. 745 DISSOLUTION OF ATT ACU^IE^T — continued. Section is not produced, as to subsequent attacher, by a mistake in taking judgment for too much, in favor of prior attacher, when tlie mistake was immediately corrected ; nor by an amendment of the declaration whereby the amount is not increased and no new demand is introduced 285 as to subsequent attacher, by an amendment of the given name of a defendant 287 is produced, as to subsequent attacher, by the introduction of new defendants into the writ of prior attacher; and by referring the action and all demands between prior attacher and the defendant, where new demands are brought into the refer- ence 287, 288 m. As between different Attaching Officers. is produced, as to another attaching officer, by the abandonment of the property by servant of the first attaching officer 292 e, 359, 360 IV. Effect of. discharges the obligation of sureties in a delivery bond .... 341 b bailee of attached property, where he has delivered the bailed property to the owner 384 discharges from the lien of the attachment the property attached . 411 ends the special property of officer in attached effects 426 requires the retui'n of the attached property to the defendant or the owner 426 discharges garnishee 411, 459 a DISTRIBUTION, of avails of attached property among simultaneous attachers, how made 263 DISTRIBUTIVE SHARE, of personal estate in hands of an administrator, not attachable be- fore he has settled his account 498 DOMICILE, absence from, may be so prolonged as to justify the party's being sued by attachment as a non-resident 57, 65 includes residence, with an intention to remain 58 W'hether the residence be long or short "61 DWELLING-HOUSE, may not be entered, against owner's will, to levy an attachment, but may be, to seize property of a stranger secreted there . . 200 E. EFFECT OF ATTACHMENT, dates from time of its service 221 EQUITABLE ASSIGNMENT, of property in garnishee's hands, will prevent its attachment for debt of assignor 527 746 INDEX. EQUITABLE ASSIGNMENT — conimwe J. Section of debt, owing by garnishee, will protect it from attachment for debt of the assignor G03, 604 valid by the law of the assignor's domicile, will be sus- tained elsewhere 605 notice of, should be given to debtor 606 garnishee receiving notice of, should state it in his answer, 607, 607 a will protect rights of assignee, though no notice be given before the attachment, if it be given before judgment . 608 evidenced by writing, may be by delivery of the writing . 609 what will and what will not constitute 610, 611 not due, may be made ; but there must be an actual debt, due or to become due 612, 613 may be made verbally 614 good faith of, may be questioned 615 made after garnishment of the debtor, does not deprive the attaching plaintiff of recourse against garnishee . . . 615 a EQUITABLE CLAIM, cannot be pleaded by garnishee by way of set-off against his liability to defendant 689 EQUITY, will not interpose to reinstate priority in attachment, lost through the plaintiff's want of regularity or legal diligence .... 262 nor in aid of garnishment 454 EQUIVOCATION, in garnishee's answer, effect of 633 ERRORS, in judicial action, caimot be questioned collaterally 87 a EVASION, in garnishee's answer, effect of 633, 656-658 EVIDENCE, what, may be given against garnishee's answer 655 EVIDENCES OF DEBT, when authorized to be attached, include only such as are complete and perfect in themselves 244 c EXCUSE, what is sufficient, for an officer's not having attached property forthcoming to answer execution 294 what is insufficient 295-303 EXECUTION, can be had only against the property attached, where defendant was not served and does not appear 5 of attachment, rules concerning 184-202 property exempt from, cannot be attached 244 money collected by a sheriff under, cannot be levied on ... . 251 to whom to be delivered, where the attaching officer has gone out of office 306 property exempt from, garnishee not chargeable for 480 INDEX. 747 EXECUTOR, s,,«,, may not be sued as such, by attachment, unless he make himself personally liable 81, 82 property in hands of, cannot be attached in a suit against a resi- duary legatee or a devisee 251 where by law subject to garnishment, may be garnished as such in an action against him individually 465 6 not chargeable as garnishee, in respect of a legacy, except where he has been ordered by the probate court to pay it 499 EXEMPTIOX, does not apply to a debt owing to defendant for exempt property sold by him » . , 2 14 a must be claimed by defendant at the time of levy .... 19G, 2-14 a cannot be claimed after judgment 244 a property subject to, must be set apart by defendant from other property not exempt . ■ 244 a if applied to one or the other of two articles, but not to both, defendant must make his election at the time the attach- ment is made, if he have opportunity, or his privilege will be waived 244 a must be proved by party claiming it, in an action against officer . 244 a of debt from garnishment, if known to garnishee, must be set up by him 480 of municipal corporation from garnishment, may be waived by it . 516 a cannot be set up by the defendant . . . 658 c from execution of property in garnishee's hands, may be set up by defendant to prevent judgment against garnishee 658 c EX PARTE ATTACHMENT PROCEEDINGS, may be assailed collaterally for want of jurisdiction, and for want of jurisdiction may be rejected as a nullity 87 a if without jurisdiction, no title passes by their instrumentality . 87 i, 88 if with jurisdiction, cannot be set aside on account of errors and irregularities 89 6 EXPENSE, of keeping attached property, cannot be deducted from the proceeds of property not the defendant's . 196 c is no excuse for officer's failure to produce the property on execution . 302 how and by whom to be paid . . . 311 not to be paid by defendant when attachment is dissolved .... 426 F. FACTOR, having privilege on consignment, is entitled to payment of his claim before the property can be attached in suit against the owner . 245 may maintain replevin in such case, against officer, for taking the property 245 property consigned to, cannot be attached for his debt, though he have a lien on it 246 748 INDEX. FACTOR — continued. Section a term used in some States in regard to one subjected to garnish- ment 451 garnishment of, does not cut off his power of sale of goods on which he has made advances 453 a FACTORIZING PROCESS, a term used in some States in the sense of garnishment process . . 451 FAILURE OF CONSIDERATIOX, may be pleaded by garnishee against his liability to defendant . . 679 FOREIGN CORPORATION, may be sued by attachment, as a non-resident 79 character of, as such, is determined by the place where its charter was granted 80 may not be garnished 478 FORTHCOMING BOND. (See Delivery Bond.) FRAUD, in sale of property, damages for, not recoverable by attachment . 10 assignment to himself, set up by garnishee, may be impeached for, when 523, 524 in title to property in the hands of a garnishee, disclosed by his answer, not determinable by the court on the answer, but must be referred to a jury 659 FRAUDULENT ATTACHMENT, may be assailed and defeated by subsequent attaching creditor . 273-275 \ attaching creditor injured by, may maintain action for .... 276 when overturned, when brought in conflict with rights of third per- sons, not attachers 289 FRAUDULENT CONVEYANCE, of property afterwards attached, when and how avoided by attach- ing officer or creditor . . 225 FRAUDULENT DISPOSITION OF PROPERTY, when a ground of attachment . . . . * 72-77 FRAUDULENT TRANSFER, garnishee holding effects of defendant under, may be charged, though defendant have no cause of action against him . . 458, 464 FREIGHT, due on property, must be paid before the property can be attached 245 FRESH FISH, not attachable 249 G. GARNISHEE, intestate, judgment against administrator of, is not entitled to pri- ority over other debts of intestate 226 defendant's property in hands of, cannot be levied on 251 BO called because he is garnished, or warned, not to pay to defendant 451 not chargeable for debt accruing after the garnishment, unless stat- ute expressly authorize it 451 a INDEX. 749 GARNISHEE — continued. Section not chargeable on account of locked trunk of defendant in his posses- sion, of contents unknown 451 a cannot, by acceptance or waiver of garnishment process, authorize proceedings against him as garnishee, where the law requii'es the process to be personally served on him 451 b corporation cannot be charged as such, on the basis of an admission, by its attorney, of service of the garnishment process . . . 451 b effects of defendant in his hands are effectually attached by his gar- nishment 453 his rights, after garnishment, in the defendant's effects in his hands 453 his property is not affected by the garnishment 454 prior transactions between him and defendant, not affected retro- actively by the garnishment 454 a equities between him and defendant cannot be settled in garnish- ment proceeding 457 can be made liable, only to the extent of his liability to defendant, except in cases of fraud 458 can be held, only so long as plaintiff has a right to enforce his de- mand against defendant 459 is discharged by dissolution of attachment 459 a can be no judgment against, till there is judgment against defendant 460 nor unless it be shown affirmatively that he is liable 461 not to be placed in a worse condition by the garnishment, than he would be in, if sued by defendant 462 general basis of his liability 463 instances of his liability, where defendant has no present cause of action against him 464 not liable for real estate of defendant 465 domestic corporation may be 469 in such case, the rules as to liability are the same as where an indi- vidual is garnished 471 corporation summoned as, how to answer 472 only a resident of London can be held as, under the custom . . 473 a non-resident of a State cannot be held as, unless he have there property of the defendant, or be bound to pay the defendant money or deliver him goods there 474, 475 non-resident, garnished, should, for his own protection, answer, or judgment by default may be given 476 one of several joint debtors may be, though the others are non-resi- dents, where all are garnished 477 foreign corporation cannot be, unless it has agreed to be sued in a State other than that in which it was formed 478 a corporation chartered by several States, may be garnished in any of them • • • ^'^ not chargeable for personalty which is exempt from execution . . 480 must setup exemption from attachment of his debt to the defend- ant, if it be known to him 480 not chargeable for choses in action of defendant in his hands . . . 481 property of defendant must be in actual possession of 482 750 INDEX. GARNISHEE — continued. Section not chargeable for property which he did not know to be defendant's, and parted with before he knew it was so 482 cannot be charged on account of constructive possession .... 483 may be charged on account of money collected by his agent for de- fendant ■ 4S^ his possession of defendant's property must be in privity of contract and of interest with defendant • 485-490 bank summoned as, not chargeable on account of money deposited with it by the defendant as acjent for others, or where deposited by him individually, though it was the money of his principal, if the principal notify the bank that it was his, and not the agent's 491 a public officer cannot be charged as, in respect of money in his hands as such • • 4yo no person can be charged as, who derives his authority from the law, and is obliged to execute it according to law 494 administrator not chargeable as, until he is ordered by court to pay to a creditor of the estate 496, 497 where by statute an administrator may be, a distributive share can- not be attached in his hands before he has settled his account 498 executor not chargeable as, in respect of a legacy 499 guardian not chargeable as 50- sheriff not chargeable as, in respect of money in his hands collected under execution 503-506 nor in respect of an execution in his hands 507 but may be as to a surplus of money over what is necessary to sat- isfy the execution 508 clerks of courts not chargeable as, in respect of moneys in their hands in their official capacity 509 receivers, trustees of courts, and trustees accountable to courts, not chargeable as • 509 a justices of the peace, receiving money collected on executions, not chargeable as 510 trustees of insolvents and assignees in bankruptcy not chargeable as 511 disbursing officers not chargeable as 512 public agent, not being an officer, may be held as 513 private agent having money which he was authorized to pay to de- fendant, but has not agreed with defendant to do so, is not chargeable as 514 attorneys at law may be 515 municipal, corporations cannot be 516 a State or its auditor, comptroller, treasurer, or agent cannot be . 510 a liability of, as affected by previous contracts touching the defend- ant's property in his hands 517-520 a^s affected by fissignments, liens, mortgages, or pledges 521-540 to charge him as a debtor of defendant, the defendant nnist have a cause of action against him 541 not liable, as such, for a debt based upon an illegal consideration 511 a rights of defendant against, pending the garnishment, how far ex- cluded 542 INDEX. 751 GARXISHEE — continued. Section plaintiff may be, in his own case 543 can be charged only for a debt * ' '. ^^^^ ^ debtor of a decedent cannot be charged as, in a proceeding against the decedent's administrator 545 a there must be privity of contract and interest 546 the debt must be a legal, as contradistinguished from an equitable, one 547 not liable on account of a claim for unliquidated damages . . • 548 under a contract of indemnity, where no loss has occurred 549 debt of, must be due in money 550 must be absolutely payable, and not dependent on a con- tingency 5ol contingent debt, what is 551, 552 not chargeable, where something remains to be done by the defend- ant before he could recover of the garnishee . . 553 unless the amount he owes the defendant be shown 553 a is chargeable in respect of a debt not yet due and payable . . 557-559 any one of several joint debtors of defendant may be charged as, but, in such case, payment by one not garnished will discharge garnishee "^"0 one of several joint debtors garnished may avoid liability on the gi-ound of the non-joiuder of the others .... 561 all of whom were named in the writ, but part not served, may be charged as 562 answering that time is want- ed to ascertain the condi- tion of the fund, or the liability of the co-debtors not summoned, proceed- ings will be stayed . . 563 / where the others reside in a foreign country, cannot be charged in respect of a con- tract made in that country 564 answer by one of a firm which has been garnished, will authorize a judgment against all the partners 565 several, not jointly indebted, neither can defend against his liability, by showing the non-liability of the others 565 a liability of, as affected by the number of the defendants and tlie number of his creditors 566-57- as maker of an unnegotiable note 574-581 as maker of a negotiable note * * ' 582-592 as affected by previous contracts between him and de- fendant 593-597 not bound to set up Statute of Frauds in discharge of his verbal promise ' ' ^^'^ where indebted, his liability is not varied by the fact that his debt to defendant is payable in another State or country .... 597 752 INDEX. GARNISHEE — continued. Section liability of, as affected by a fraudulent attempt by the defendant to defeat the payment of his debts 598-601 as affected by an equitable assignment of the debt 602-615 a as affected by legal proceedings against him by defend- ant for the recovery of the debt 616-627 • cannot be charged on account of a verdict rendered against him in favor of the defendant in a libel suit 627 a answer of, must be by him in person 628 must state all facts necessary to enable the court to decide his liability 629 is not estopped from denying liability, by any previous admissions 629 a should state every fact which had destroyed his relation as debtor to defendant 630 where the same person is, in several suits, he should bring that fact to the notice of the court in his answers in the suits after the first 630 a cannot state facts in his answer, which change the terms of a writ- ten contract 631 if not indebted to defendant, be should so declare ; if he be in doubt, he should state the facts, and leave the matter to the court . 632 should avoid evasion or equivocation in his answer 633 his answer should be full and explicit, and when so the court will protect him from further interrogatories 634, 635 refusal by, to answer pertinent interrogatories, effect of . . 636, 636 a answer of, need not conform to the technical rules of pleading . . 637 if as good as he can make, will be sufficient .... 638 may state matters not of his own knowledge 639 may be required to make statement of his accounts with defendant 639 a may be required to answer interrogatories as to his having been a party to a fraudulent sale 640 may have the correctness of an interrogatory determined by the court 642 extent of intei-rogatories to, is in the discretion of the court . . . 642 interrogatories to, must be confined to such matters as are the ground of his liability 643 will be protected against impertinent and vexatious questions . . 644 not required to state what would deprive him of a defence against his debt to defendant . . : . . . . 645 anything showing him to have committed a violation of law 646 anything tending to impair or impeach his title to real estate 647 may be questioned as to real estate of defendant held by him in trust, with a view to subject the rents or proceeds thereof to the payment of defendant's debts 648 may, at his option, make statements of others a part of his answer 649 may amend his answer 650 effect to be given to his answer 651-655 construction to be given to his answer 656-658 judgment against defendant should be shown in the record, to sus- tain that against garnishee 658 a judgment against, need not be taken at the same time as that against defendant 658 J INDEX. 753 GARNISHEE — continued Section death of, after his answer, arrests all proceedings against him . . G58 bh defendant may show ground for not rendering judgment against garnishee 658 c should have a fair hearing on the question of his liability . . . 658 d permitting judgment against him, by his negligence, is without relief 658 e in default, is entitled to a strict observance of the steps prescribed by law as preliminary to a final judgment against him . . . 658/ judgment on answer of, rules concerning 650 extent of his liability is determined by the amount in his hands, not exceeding amount of plaintiff's judgment against defendant 660 may discharge himself, by delivering into court the defendant's property in his hands 661 is not liable for costs, where he does not assume the attitude of a litigant 6G2 is liable for costs if he denies indebtedness, and is found indebted 662 cannot be charged if plaintiff get satisfaction of his debt otherwise 663 his liability for interest pendente lite 66-1-666 is liable onlj' for what was in his hands when garnished .... 667 iov dehitum in prcesenti., solcendum in futuro .... 557,668 for debt uncertain as to amount, but the amount of which is afterwards made certain 669 his liability, as existing at the time of the garnishment, may be dis- charged by subsequent events 670 when and where chargeable for effects of defendant coming into his hands after garnishment 671 may make any defence he could against suit by defendant . . . 672 judgment in favor of, in a suit brought against him by the defend- ant before the garnishment, is conclusive against his liability as garnishee 672 « may show that plaintiff's claim has been satisfied 673 agreement or understanding between him and defendant, made after garnishment, cannot defeat the garnishment .... 674 voluntary payment by, of his debt to defendant, after garnishment, will not discharge him 671 a payment by agent of, after the garnishment, but with no knowledge of it, W'ill discharge garnishee 674 a payment by, to defendant, after garnishment, is voluntary, unless made under compulsion of judicial order or process .... 674 a setting up payment of his debt, must show that it was made before the garnishment 674 h payment by, to defendant, after garnishment, under erroneous suppo- sition that the garnishment was defective, will not discharge him 674 c alleged payment by, to defendant, set up as a defence, must be a payment in fact, and not a contrivance intended to be a pay- ment or not, as circumstances might reqiiire 674 d is discharged by a payment of his debt, made by a co-obligor not garnished 674 e payment by, to defendant, after judgment discharging him, and before writ of error sued out, is a good defence, though that judgment be afterwards reversed 674/ 48 754 INDEX. GARNISHEE — continued. Section payment by, under previous garnishment discharges his liability . 675 after garnishment, on irregular execution in favor of defendant, will not discharge him 076 paying money, under an order of court, into the hands of the sheriff, is protected against both plaintiff and defendant 676 a previous voluntary payment by, to a creditor of his creditor, will not discharge him 677 may plead statute of limitation against his liability to defendant . 678 may plead failure of consideration of his debt to defendant . . . 679 if discharged from his contract by the default of defendant, he can- not be charged as his garnishee 680 ■when and where he may set up equitable defences 681 defences by, must be such as would avail him as a defence in an action by defendant against him 682 cannot set up a defence which would operate a fraud on defendant's creditors 682 a relying, in his answer, on one defence against his liability, cannot on the trial set up another and repugnant defence 682 b cannot avoid liability by showing that defendant's money came into his hands through a transaction in violation of law .... 682 c may p>lead set-off to his liability to defendant 683-688 how may be deprived of right of set-off 688 a cannot avail himself of an equitable claim by way of set-off . . . 689 may deduct any damages he is entitled to recover of the defendant growing out of the same transaction or contract 689 a is entitled to benefit of recoupment 689 a where liable on account of defendant's property in his hands, he cannot plead set-off unless he has a lien on the property . . 690 his relation to the main action 691-698 must see that the court has jurisdiction of both the defendant and himself 692-696 may reverse judgment against himself, if the court had not juris- diction of defendant 696 what he may not do, in reference to the main action, if the coui't has jurisdiction of both defendant and himself 697 when he may set up the defendant's death in bar of judgment against himself 698 if obliged, as garnishee, to pay his debt, shall not bo required to pay it again to defendant 699 if sued by defendant, may plead prior garnishment in abatement . 700 prior garnishment of, is good ground for suspending proceedings in defendant's suit against him 701 sued by the defendant after his garnishment, when he may plead the garnishment puis ilarrein continuance 702 •where sued by defendant in one court, and garnished in another, the priority of the proceedings will determine the right . . . 702 cannot, when sued by the attachment defendant, ]ilead the pending garnishment, unless it acts directly on himself, and not inter- mediately through another 703 garnishment of, is no defence to an action by an assignee of the debt 703 a INDEX. 755 GARXISHEE — continued. _ Section -n-heu may plead attachment in bar of interest on his debt, pendente lite 704 plea by, of a pending attachment, in abatement, what it must show 705 judgment against, and satisfaction thereof by, where court has jurisdiction, is conclusive against parties and privies . . . 706 judgment in favor of, is conclusive against the plaintiff, though ob- tained by fraud 706 a discharge of, is no bar to an action by defendant 707 judgment against, does not bar defendant from recovering more from garnishee than he was charged for 707 satisfaction by, of judgment against him, is necessaiy to constitute a defence to an action by the defendant against liim .... 708 judgment against, is no defence to an action by defendant, where the attaching plaintiff, by his laches, cannot issue execution on it . . ^ 709 payment by, of judgment against him, bars action by defendant against him on the debt in respect of which he was charged .... 710 is a good defence in favor of one collaterally and contingently bound for the attached debt . . 710 a rules concerning, in order to making it a defence against an action by the defendant 711 to be sustained as a defence, the facts necessaiT thereto must appear in the record of the attachment suit . 712 not responsible for the regularity of the proceedings in the attach- ment suit '^'^ to sustain attachment as a defence, there must be no neglect, col- lusion, or misrepresentation on his part 714 in such case it must appear that the debt for which he was charged was the same as that for which he is sued by defendant ... 715 •where charged by default, without answer, he may show by parol proof that the debt was the same 716 if, before judgment, he learn of an assignment of his debt, he must make it known to the court, or the judgment will not protect him Jl^ should be notified by the assignee of the assignment of the debt 718, 719 recovery against, how pleaded _• _• ' — ' in pleading it, he is not bound to show that the attaching plaintiff had a sufficient cause of action 723 GARXISHMEXT, has the effect to place the property in the garnishee's hands m the custody of the law, so that it cannot be taken from him by levy 251 orifrin and meaning of the term 4ol 756 INDEX. GARXISHMEXT — continued. Section is a purely statutory i^roceeding, and cannot be pushed beyond the statutory authority 451 a does not reach debt accruing after garnishee is summoned, unless expressly authorized by statute 451 a rests wholly upon judicial process, and cannot be aided by volun- teered acts of garnishee 451 b after the return day of the writ, is of no validity 451 b is a process, and not a jileading, and defects in are the subject of a motion to quash, or a plea in abatement '. 451 c officer must make return of, or the proceeding will fail .... 451 d is in the nature of a proceeding in rem 452 is a suit 452 effect of 453,453 a of a party having cTioses in action of the defendant in his hands, does not prevent his suing parties liable thereon 453 a cannot be extended beyond reaching the defendant's property in the hands of garnishee 453 b creates no lien on the estate of the garnishee 453 b cannot be supplemented by injunction, or other proceeding in equity 454 can have no retroactive effect, so as to affect prior transactions be- tween garnishee and defendant 454 a can have no effect to overthrow trusts ' . . 454 b attachments by, take precedence in order of service 455 is a legal and not an equitable proceeding 457 does not confer any greater rights against garnishee than defend- ant has 458 effect of, continues only so long as plaintiff has a right to enforce his claim against defendant 459 cannot have the effect of placing the garnishee in a worse condition than he would be in, if he were sued by defendant .... 462 is a proceeding against third persons, and cannot be used against parties, where such use is, in effect, a garnishment of the defendant 465 a of corporation, how effected 470 of the same person, by courts of different jurisdictions .... 485 a of a firm, by its partnership name, without the names of the indi- vidual members, charges no member of it 564 a cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from lierforming a contract with third persons . . . 517, 593, 594 by plaintiff, of himself, to reach a debt he owes defendant, cannot be pleaded by him in abatement or in bar of a writ by the lat- ter against him 703 b GRASS, gi-owing crop of, not attachable 249 GREEN FRUITS, not attachable 249 GUARDIAN, of infant or insane person, not liable to garnishment, on account of property of his ward 502 INDEX. 757 • H. HEIRS, Section may not be sued as such by attachment 01 HUSBAXD, interest of, in wife's chases in action, is it attachable? 247 I. ILLEGAL COXSIDERATIOX, garnishee not chargeable in respect of debt based on 541 a IMPORTER, creditor of, cannot attach goods of, held by a collector of the rev- enue for the duties thereon 251 BIPROVIDEXT ATTACHMENT, what is 397 may be contested by defendant 398-405 contest of, should precede appearance and plea to the action . . . 406 when vacated, another attachment on same ground cannot be sus- tained 406 a plea in abatement to affidavit for, rules concerning 407-410 INCONSISTENCY, between any two grounds of attachment set forth in an affidavit, will vitiate it 101 INCREASE OF DEMAND, in attachment suit, will dissolve attachment, as against subsequent attachers 282 INDEMNITY, officer ought not to levy attachment without, where there is danger of his committing a trespass 189 to be entitled to, officer must notify plaintiff to give it .... 189 may be demanded before officer sells the property 189 refused by some of several attachers, and given by others, the for- mer, though prior in levy to the latter, cannot claim the avails of the property 189 given by a plaintiff to an officer, with knowledge that the property is claimed by another than the defendant, makes the plaintiff responsible for the officer's acts 189 contract of, garnishee not chargeable in respect of, where no loss has occurred 549 aliter, where loss has occun-ed, and the contract furnishes a stand- ard by which the amount of the liability can be ascertained and fixed 549 INDORSER, of a promissory note may be proceeded against by attachment . . 31 INFANT, guardian of, not subject to garnishment in respect of property of, in his hands 502 INHABITANT, defined 59 768 INDEX. INJUNCTION, Section cannot be resorted to in aid of garnishment 454 •INSOLVENTS, trustees of, not chargeable as garnishees 511 INSURABLE INTEREST, an officer has in personal property attached by him 291 INSURANCE COMPANY, may be charged as garnishee, in respect of a loss under a policy issued by it 549 INTEREST, garnishee's liability for 664-666, 704, 704 a INTERMIXTURE, of goods, effect of upon rights of owners 199 effect of upon special property of officer 292 c (See Confusion of Goods.) INTERPLEADER, does not lie, where a debtor is garnished, and is afterwards sued by his creditor before he is charged as garnishee 700 INTERROGATORIES, to garnishee, not allowed, after he has fully answered 635 can garnishee be charged for not answering? 636 tending to show garnishee to have been a party to a fraudulent sale, must be answered 640 limit to, is in the discretion of the court 641 must be confined to such matters as are the ground of garnishee's liability 642 impertinent and vexatious, not allowed 643, 658 d IRREGULARITY, in judicial action, cannot be questioned collaterally 87 a in issue of writ, will not prevent officer's protecting himself by it, nor justify him in omitting to execute it 185 in proceedings of an attaching creditor, cannot be taken advantage of by other attachers 262, 273 in the attachment suit, cannot be set up as a defence by a tres- passer, sued by an officer for violating his possession of attached property 291 party who causes attachment to issue is responsible for, and if at- tachment is set aside for, he is a trespasser ab initio .... 411 a in the judgment against defendant, cannot be taken advantage of by garnishee 697 ISSUES AND PROFITS, of real estate, cannot be taken by an attaching officer through his attachment 239 J. JOINT CREDITORS, of garnishee, not partners, interest of either in his debt to them may be attached in a suit against one of them separately . . 572 INDEX. 759 JOTXT DEBTORS, s,,,,,,^ one of, may be garnished, and subjected to a judgment for the whole of their debt to defendant, where they are jointly and severally liable 5G0 payment of debt by one of, under garnishment, is a good defence for all against a suit by the defendant on that debt .... 710 JOIXT INTEREST, in real estate, may be attached in suit against one joint owner . . 241 and so as to personalty 248 JUDGMENT, against defendant, where he is served, and his property is attached, is in personam 5 where he is not served, but is notified by publi- cation, and does not appear, affects only the property attached, and cannot be the founda- tion of an action, nor be for a greater amount than that for which the attachment issued, nor for any other cause of action than that stated in the publication 5 in a suit on a debt not due, must not be taken before the maturity of the demand 33 a may be sued on by attachment, in the same court in which it was rendered, though execution might issue thereon 35 a supersedes the attachment, and after its rendition no action can be taken under the latter 191 ^ for plaintiff, merges the lien of the attachment 224 a against administrator of garnishee, is not entitled to priority over other debts of the intestate 226 453 b which the attached property must answer, is that which plaintiff may ultimately recover 227 a against defendant, must be obtained, to entitle plaintiff to any benefit from attachment 228, 262 in favor of defendant, destroys the lien of the attachment . . 228, 413 confession of, by defendant, before the time when the action would be regularly triable, dissolves plaintiff's attachment, as against subsequent attachers 262 taken for claims not recoverable under the declaration, dissolves the attachment as against subsequent attachers 282, 283 taken by mistake for more than the plaintiff is entitled to, will not dissolve the attachment 285 for plaintiff, reversal of, not on the merits, does not entitle defend- ant to recover from plaintiff the proceeds of property sold, if plaintiff prosecuted his suit in good faith 430 cannot be taken upon mere attachment of property, without service upon, or notice to, or appearance by, defendant 436 without service on defendant, or attachment of property is void . 5, 449 without service, and upon publication, can be for no more than amount sworn to, interest, and costs 449 a against garnishee, cannot be rendered, until there is judgment against defendant 4G0 760 INDEX. JUDGMENT — continued. Section remaining of record in a court, cannot be attached by garnishing the clerk of the court 509 against garnishee, on account of a debt, bars action against him by an assignee of the debt, whose title thereto was tried in the attachment suit, and adjudged invalid 530 against defendant, should be shown in the record, to sustain that against garnishee 658 a against garnishee, need not be taken at the same time as that against defendant C58 h after his death, is erroneous 658 bb permitted by his negligence, cannot be relieved against 658 c when defendant may interpose to prevent . . . 658 c without fair hearing, will be set aside .... 058 d by default, rules concerning 658 e on his answer, rules concerning 659 in favor of a defendant who has been garnished, is conclusive against his liability as garnishee in a garnishment which took place after the institution of the suit in which the judgment was rendered 672 a against garnishee, by court having jurisdiction, and satisfaction thereof by him, js complete defence to a subsequent action by defendant against garnishee for what the latter was compelled to pay 706 in favor of garnishee, is conclusive against plaintiff, though ob- tained by fraud 706 a of discharge of garnishee, does not bar an action by defendant . . 707 in favor of garnishee in one attachment suit, does not preclude his being charged in another, nor preclude defendant from claim- ing more in his action than the garnishee was charged for . . 707 against garnishee, without satisfaction or execution, does not bar an action by defendant against him .... 708 put by plaintiff's laches in a state of suspension, so that execution cannot issue on it, and it could not be revived by scire facias, is no defence to an action by defendant against the garnishee . . 709 amount paid under, bars action by the defendant 710 payment under, by garnishee, rules concerning . 711 not conclusive, if there be neglect, collusion, or misrepresentation on his part 71-1 on a reference, will protect him 714 not available to him as a defence, unless it appear that it was for the same debt he is sued for by the defendant 715 by default, may be shown by parol proof to have been on account of the same debt for which the defendant sues him 716 how to be pleaded 720, 721 JUDGMENT DEBTOR, may be garnished 622-627 INDEX. 761 JURISDICTION-, Section defined 85 general and special, defined 85 acts through process and modes of procedure 85 general, presumed to have been lawfully exercised 85 special, facts conferring, must appear in the record 85, 90 what is exercise of 86 want of, may be shown in defence 87 a by attachment, in ex parte cases, may be collaterally impeached 87 6-89 a when and to what extent garnishee may and should inquire into 691-69G JUROR, money due to, for his services, not attachable 493, 546 JUSTICE OF THE PEACE, not subject to garnishment in respect of money received by him on execution 510 JUSTIFICATION, of officer in levying attachment, is complete if the writ be in legal form, and issued out of a court having competent jurisdiction 185 K. KEEPER OF ATTACHED PROPERTY, defendant may not be 428 defendant's wife may be, when 428 his possession is that of the officer 431 if he abandon it, the lien of the attachment is lost as against adverse claimants, or another attachment 431 what vigilance by , in the custody of the property, is necessary . . 432 L. LEGACY, not attachable in hands of executor 499 but where made a charge on real estate, the devisee may be gar- nished in respect of it 500 when, by express law, made attachable, is not such a contingent liability as will prevent its being attached 501 LEGAL PROCEEDINGS, by defendant against garnishee, effect of, on garnishee's lia- bility 616-627 LEboEE, of personal property, interest of, may be attached 245 LESSOR, of personal property, interest of, not attachable 245 LEVY, of attachment, cannot be made until the writ is in the officer's hands 183 a issued by an officer having no legal power to issue it is void, and will not protect the officer . . 184 762 im)EX. LiEYY — continued. Section under a writ so defective that it is void, cannot be made effective by ameudment, so as to cut off rights of third parties acquired after the levy 184 a made on Sunday, is valid unless prohibited by law ...... 187 made on Christmas, is lawful Ib7 may be made at any time prior to the return day of the writ, or prior to its actual return before that day 187 a made after return day, is void as against a third party claiming the property 187 b oiEcer is bound to make, on any j)roperty of the defendant which he can find 188 but not without indemnity, where there is danger of the officer's committing a trespass 189 officer is bound to make, on sufficient property, if found .... VJO officer not bound for deficiency in, when caused by a mistake in the writ as to amount of claim 190 officer bound only to reasonable diligence in making 191 a continued with no unnecessary delay, is to be treated as one act . 192 effected by unlawful or fraudulent means, is void 193 must be made in conformity to law, or no lien is created .... 194 must not be made on property not liable to attachment .... 195 on property not the defendant's, makes the officer and the plain* tiff trespassers 196 when made under several attachments, on the same property, not the defendant's, the owner of the property cannot sue the offi- cer who levied the last attachment 19G a what will amount to, for which trespass will lie 197 officer may enter store by force to effect 200 but not a dwelling-house, except to reach property of a stranger secreted there 200 for a greater amount of property than is required to meet the at- tachment, does not make the officer a trespasser, unless he act oppressively 201 abandonment of, invalidates the attachment 202, 257, 290 is necessaiy to constitute an attachment 221 effect of 222-224 cannot be made under the attachment, after judgment .... 224 a first, is entitled to priority of satisfaction 255 what will constitute 255 a-257 on heavy and unmanageable articles, how-made 258 on stock in a corporation, how made 259 LIEN, on attached property, is not created by a levy not made in con- formity to law 194 existing when the property is attached, will prevail over the attachment 223 is created by levy of the attachment . . . 224 of attachment, is, after judgment for plaintiff, merged in that of the judgment 224 a INDEX. 7G3 LIEN — continued. Section of attachmeut, enables the plaintiff to resist fraudulent conveyances and incumbrances of attached property .... 225 extends only to effects attached, and does not reach, constructively, the property of the garnishee . 226, 454 is commensurate with the judgment recovered, though it be greater than the amount for which the attachment was obtained 227 extends to judgment ultimately recovered . . . 227 a is of no value, unless plaintiff obtain judgment . . 228 in favor of plaintiff, but not of the attaching officer, is imposed by the attachment of real estate . 239, 240 takes effect only when the writ is served . 221, 203, 290 is lost, as against subsequent attachers, by plaintiff taking confession of judgment before the time ■when the action would be regularly triable, or by trial before return day of the writ, or by taking the attached property, by agreement with defend- ant, in satisfaction of his claim, and discontinu- ing his suit ^^^ is lost, by officer's permitting the attached property to remain in defendant's possession, unless author- ized by law ''^- ^ on garnishee's estate, is not created by garnish- ment *^* definition of • • ^^""^ if garnishee have, on property in his hands, the property cannot be taken • • ' ' lH must exist, however, as distinguished from mere possession ... &db is relinquished, if the pledgee attach the pledged property ... 510 LIMITATION, . . 1 • r t Tf + statute of, may be pleaded by garnishee against his hability to defendant ' LOCKED TRUNKS OR BOXES, ^ ^ u, of defendant, of unknown contents, garnishee not chargeable on account of his possession of them 4^1 a "property of, in hands of guardian, not attachable 251, 502 M. MAIN ACTION, 691-698 garnishee's relation to MALICIOUS ATTACHMENT, . v, . u ^ iri action for, not affected by the execution of an attachment bond • JJ* rules governing 7-4-7io MALICIOUS PROSECUTION, attachment will not lie in action for ^^ 764 INDEX. MANUFACTURE, Section goods in process of, not attachable 250 person in possession of, may be charged as gar- nishee in respect of 464 MARRIAGE PROMISE, damages for, not recoverable by attachment 10 MASTER m CHANCERY, may be charged as garnishee, in respect of money which he has been ordered to pay to defendant, but not before 509 a MISRECITAL, in attachment bond, of the term of the court to which the attach- ment is returnable, does not vitiate the bond 127 of the amount sworn to, does not vitiate the bond 112 in the writ, of the court to which it is returnable, is no ground for dissolving attachment 416 MONEY, may be attached, and taken from the defendant's possession . . 244 in the hands of an attorney at law, paid to him for a client, cannot be levied on in an action against the client 246 in custodia legis, not attachable 251 collected by an officer under execution, cannot be levied on as the property of the execution plaintiff 251 paid into the hands of a clerk of court, on a judgment, or paid into court, is not attachable 251 MONEY COUNTS, what may be given in evidence under 286 MORTGAGE, personal property in garnishee's hands, subject to, mortgagee not liable as garnishee 539 MORTGAGEE, of personalty, may waive his rights as such, and attach the mort- gaged property 35 of real estate, has not an attachable interest in the property . . . 235 of personal property, cannot be held as garnishee of mortgagor . . 539 MOTION TO DISSOLVE, SET ASIDE, OR QUASH ATTACH- MENT, will lie, where the cause of action does not authorize attachment 36, 414 for defects in affidavit, when may be resorted to 112 is in the nature of a plea in abatement . . 112 must precede plea to the merits 112,414,421 effect of, as an appearance to the action 112, 414 is a submission to the jurisdiction, if the defendant combine with it a motion to review and sot aside the judgment, or if he have the case put at the foot of the docket, or take issue and go to trial on the defective affidavit 112 INDEX. T65 MOTION TO DISSOLVE, 'ETC. — continued. ^ Section may be made where by law a cautionary bond is required, and none was given before issuing the attachment 115 is based on defects apparent on the face of the proceedings ... 415 what may be shown upon 415, 418 may be made by sureties in a delivery bond 33Ga, 419 what cannot be shown under 418 may be made by amicus curiae, semble 418 a cannot be made by one not a party to the record . . . . • • 419 the entertainment of, for irregularities, is within the discretion of the court, and a refusal by the court to entertain it is not con- trollable by mandamus, or revisable on error 420 judgment on, quashing the writ, may be examined on error . . . 420 reasons in support of, must be spread on the record 420 where the attachment was sued out on a cause of action not author- izing it, and the court refuses to dismiss the suit, the appellate court will review its action, and itself exercise the remedy . . 420 overruled by the court, does not preclude dissolution pf the attach- ment on final hearing 421 may be made on account of defects in the garnishment proceedings 451 d MUNICIPAL CORPORATION, cannot be garnished ^1" taxes due to, cannot be attached 516 exemption of, from garnishment, may be waived by it, semble . . 516 & cannot be set up by defendant 658 c N. NEGOTIABLE NOTE, maker of, cannot be garnished in action against payee, under at- tachment served before maturity, unless before rendition of the judgment the note had become due and was then still the property of the payee 582-588 NON COMPOS MENTIS, . property of one judicially found to be so, is not attachable ... 2ol NON-JOINDER, in garnishment, of some of several partners, effect upon those garnished ^61-564 NON-RESIDENT, ^^ may sue by attachment -7 r7 when may be proceeded against by attachment o7-bl property of, may be attached, though it would be exempt from attachment if he were a resident • "u-' cannot be garnished, unless he have property of defendant m his possession, or be bound to pay him money, in the State where garnished ; ; • ^74, 475 when garnished, should answer, to avoid judgment by default . . 4/b may be charged as garnishee, where jointly liable with residents, and all are garnished 4<7 766 INDEX. NOTICE, ^ Section of j>rior attachment ■will not prevent an officer's attaching again, where the first attaching officer has relinquished his possession, unless the property has been receipted for by a bailee, and the contract of bailment is still subsisting 292 b NOTICE BY PUBLICATION, to absent defendant, "when required 436 not necessary to confer jurisdiction 437 what is sufficient 439-446 insufficiency of, does not invalidate title to property acquired through the attachment 447, 448 o. OFFICER, may levy an attachment, without being a trespasser, though no bond was given by the plaintiff, unless the defect appear on the face of the writ 117 issuing attachment without bond, is liable to defendant as a tres- passer, if the writ be levied 118 cannot levy an attachment before the writ comes into his hands . 183 a is not protected in levying, if the writ was issued by an officer having no legal power to issue it 184 is justified in levy, if the writ be in legal form, and issued out of a court having competent jurisdiction, though the process be erroneous and voidable, or no cause of action exist . . 185, 185 a levying attachment on property in possession of a stranger claim- ing title thereto, is not justified by merely producing the writ, but must prove that the defendant was indebted to the plain- tiff, and that the writ was regularly issued 185 a interested in the suit, cannot, in person or by deputy, execute an attachment, nor can he deputize the plaintiff to execute it . . 185 d may levy an attachment on Sunday, where no statute forbids . . 187 authority of, to levy an attachment, continues until the return day of the writ, or until its actual return before that day . . . 187 a duty of, to levy an attachment on any property of the defendant he can find 188 ought not to levy, without an indemnity, where there is danger of his committing a trespass 189 to be entitled to indemnity, must notify plaintijffi that he requires it, before proceeding to levy 1S9 may demand indemnity before selling the property 189 taking a writ, with directions to serve in a particular manner, without requiring indemnity, is bound to serve it according to instructions 189 a is bound to attach sufficient property, if found 190 receiving several attachments, is bound to levy them all on all the property found 190 is bound by his representations to plaintiff, whereby the latter is led to foresTO further attachment 190 INDEX. 767 OFFICER — continued. Section not responsible for deficiency of levy, where caused by a mistake in the writ as to the amount to be attached 190 duty of, to execute the writ as soon as he reasonably can . . . 191 bound only to reasonable diligence in making le\"y 191 a when several acts by, in levying on property, will be considered as one act 192 levy of attachment by, effected by unlawful or fraudulent means, is void 193 in making levy, must make it in conformity to law 194 must do no wrong to defendant 194 is a trespasser ab initio, if he departs from the course prescribed by law in making a levy 194 executing lawful process in a lawful manner, is never a trespasser 194 a when a trespasser, all acts done by him in the case are unlawful . 194 a levying an attachment on property not liable to attachment, is a trespasser, unless defendant assent 195, 244 a levying several attachments on property not the defendant's, is not liable for levying the last one 19G h cannot deduct costs and expenses from proceeds of sale of property not the defendant's 196 c levying attachment on property not the defendant's, is a trespasser, though the owner give him no notice, and make no demand on him for it 197 duties and liabilities of, in cases of confusion of goods .... 199 may enter a store by force to effect a levy of attachment .... 2U0 may not enter a dwelling-house, unless to reach property of a stranger 200 is not a trespasser for levying on more property in value, than enough to satisfy plaintiff's demand, unless he act oppressively 201 abandoning attachment, loses his lien on the property . . 202, 257, 290 using attached property, effect of 203 return of writ by, rules concerning 204-220 rights of, as against persons claiming attached property under transfers alleged to be fraudulent 225 may be sued in trespass by the pawnee of personal property for attaching property pawned to him, in an action against the pawner or mortgagor .... = ....' 245 money in hands of, collected on execution, cannot be levied on as the property of the execution plaintiff 251 in attaching personalty, must reduce it to possession 256 what possession by, will constitute an attachment 256-258 lodgment of writ in hands of, confers no rights in defendant's property 263 cannot decide the distribution of funds between executions in attachment suits 263 a cannot levy attachment on property in the hands of another officer, under an attachment, even though the other had levied on more than sufficient to satisfy his wi-it 267 bis right to recover against an officer who has seized the property on which he had made a prior le\7- 268 768 INDEX. OFFICER — continued. Section seizing property for which a delivery bond has been given, he must keep it safely, so that it shall be forthcomiug to answer the first levy . 268 a notice of the prior attachment must be given to, where he seizes property in hands of sureties in a delivery bond 268 b seizing property in the hands of one liable for it as garnishee, must hold it subject to the prior lien of the garnishment .... 270 suffering his possession of attached property to be lost, it may be attached by another officer 271 liability of, for attached personal property 290 duty of, to retain possession of attached personalty 290 has a special property in attached effects 291 special property of, in attached effects, is an insurable interest . . 291 is not bound to insure his special property 291 special property of, continues as long as he remains liable for the attached effects 291 may maintain trover, trespass, or replevin, for violation of his pos- session of attached effects 291 in case of death of, his administrator may maintain ti-over for attached effects, for the benefit of the attaching creditor . . 291 resignation of his office by, will not deprive him of his right of action for attached effects 291 to maintain his special property in attached effects, must, in his proceedings with it after the attachment, comply with all the requirements of the law, or show some legal excuse for not doing so 291 selling attached property without lawful authority, is a trespasser ab initio 291 degree of care and diligence he is held to in keeping attached effects 292 should not leave attached effects in possession of the defendant . 292 a cannot make the defendant his agent to keep the attached effects . 292 a may employ defendant's wife to keep the attached effects, when . 292 a suffering attached effects to be mixed with others of a like kind, previously attached by another officer, who returns an attach- ment of the whole, loses his lien 292 c effect of his removal of attached effects into a foreign jurisdiction . 292 d lien of, not lost by his placing the attached effects in the keeping of a servant, unless the servant abandon possession .... 292 e •what is sufficient excuse for his not having property in hand to meet execution 294 ■what is insufficient excuse in such case 295-303 special property of, in attached effects, is not devested by the taking of them out of his custody by a wrong-doer .... 297 may follow attached property, when taken from him by a wrong- doer, and retake it wherever he finds it ' . . 297 in action against, for failing to produce attached projierty on exe- cution, he cannot impeach plaintiff's judgment, except for fraud ; nor can he take advantage of the loss of the writ of attachment 304 INDEX. 769 OFFICER — continued. Section may, in such action, show, in mitigation of damages, that the exe- cution has been satisfied 304 demand must be made upon, for the attached property, upon the execution 305 can he be sued by defendant for damage to attached property, while the attachment is pending? 307 may excuse himself, when sued by defendant for loss or waste of attached property, by showing that he had applied the amount to the defendant's use by paying expenses of keeping the prop- erty, or by satisfying other executions against defendant . . 308 rule of damages against, in action for failing to produce attached property on execution 309 sued for not producing attached property on execution, is bound for value of the property as stated in his return, if there be no other evidence of value 310 is entitled to be reimbursed expenses of keeping attached prop- erty 311 rights, duties, and responsibilities of, in connection with bailment of attached property 344-396 is bound to return attached property to defendant, or the owner, on dissolution of the attachment 426 when liability of accrues, for return of attached property to de- fendant 427 must make return of garnishment, according to law 451 d public, not chargeable as garnishee for money in his hands payable to defendant 493,494 omssiox, of recital in a writ that a bond was given, will not vitiate the attachment 119 of a word in an attachment bond will not vitiate it, if, by looking at the whole instrument and the statute, it is apparent what word was intended to be inserted 124 OWXER, of attached property, entitled to return thereof on the dissolution of the attachment 290, 426 P. PARTXER, cannot sue partner by attachment for an amount alleged to be due, growing out of partnership transactions 34 cannot be subjected as garnishee of his copartner, in respect of unsettled partnership accounts 545 PARTNERS, where there is ground for attachment against one, but none against the other, attachment cannot issue against the latter .... 37 a one of several, not chargeable as garnishee without joinder of the others ^^1 unless part are out of the jurisdiction 562 ^^- 49 770 INDEX. PARTXERS — continued. Section if part are in a foreign country, those in this country cannot be charged as garnishees 501 in garnishment of a firm, the names of the individual members of it must be set out 564 a where all the members of a firm are garnished, the answer of one admitting a debt from the firm to defendant will authorize judgment against all 565 PARTNERSHIP, garnishment of, by its firm name, charges no member of it . . . 564 a PARTNERSHIP CREDITS, cannot be attached for debt of one partner 567-570 where partnership is dissolved by death of one or more partners, a debt due to the late firm may be attached in an action against the survivor 571 PAYMENT, by one of several debtors not garnished, after garnishment of another jointly and severally liable with him, will discharge garnishee 560 voluntary, by garnishee, after garnishment, will not discharge him 674 a by garnishee, after garnishment, is voluntary, unless made under compulsion of judicial order or process 674 a by agent of garnisliee, after garnishment, but in ignorance of it, will discharge the garnishee 674 a by garnishee, time of, must be shown by him, when pleaded as a defence 674 b set up as a defence, must be a payment in fact, and not a contrivance intended to be a payment or not, as circumstances might subsequently require . . 674 d by a co-obligor of garnishee, who was not garnished, will discharge the garnishee 674 e by garnishee, after judgment discharging him, and before writ of error thereto, is a good defence, though the judg- ment be afterwards reversed 674/ under previous garnishment, will discharge him . . 675 on irregular execution in favor of defendant, after garnishment, will not discharge him 676 previous, voluntary, by gaiuiishee to creditor of defendant will not discharge him 677 by garnisliee, under judgment against him as such, bars subsequent action by defendant against him upon the debt in respect of which the garnishee was charged 710 by one of several joint debtors, under garnishment, is a good defence for all the joint debtors, against action by the defmidant . . 710 by garnishee, wherever it would avail him, will equally avail one collaterally and contingently bound for the debt in respect of which tlie garnishee was charged . . . 710 a requisites of, as a defence to him against action by defendant 711 PENDING ATTACiniEXT, may be pleaded in abatement of suit by defendant against garnishee for the debt 700 INDEX. 771 PENDING ATTACHMENT — continued. Section is good ground for a continuance while the attachment is pending . 701 when may be pleaded puis darrein continuance 702 should have no effect upon ci-editor's action against his debtor, unless the attachment acts directly, and not intermediately, on the latter 703 is no defence to an action against the garnishee by an assignee of the defendant 703 a cannot be pleaded in favor of a plaintiff who has garnished himself, and is afterwards sued by the attachment defend^mt .... 703 b effect of, upon liability of garnishee for interest pending the attach- ment suit 704 in pleading, the plea must contain all facts necessary to show that < the court in which the attachment is pending, has jurisdiction 705 PENSIONER, money collected for him, as pension, cannot be attached in the hands of his agent 246 PERISHABLE PROPERTY, when not attachable 249 obligation of attaching officer concerning 300, 301 PERSONAL PROPERTY, which cannot be sold under execution, cannot be attached . . . 244 which can be sold under execution, may be attached 244 exempt from execution, not attachable 244 a, 244 6 the sale of which is penal, not attachable 244 c what descriptions of property are included in the term .... 244 d pawned or mortgaged, is not attachable in an action against the pawner or mortgagor 245 pawnee of, may maintain trespass against officer for attaching, in an action against the pawner 245 ordered, with authority to draw for the price, cannot be attached for the debt of the purchaser before delivery to him .... 245 upon which freight is due, not attachable, without paying the freight 245 manufactured by one for another, cannot be attached in an action against the latter 245 in hands of a bailee for hire, cannot be attached in a suit against the bailor during the term of the bailment 245 interest of lessee of, may be attached 245 interest of lessor of, may not be attached 245 consigned to a factor entitled to a privilege thereon, cannot be taken from him under an attachment against the owner, without pay- ing factor's claim 245 not attachable where defendant has lost his power over it, or has not acquired such interest in or power over it as to permit him to dispose of it adversely to others 245, 245 a, 246 agreed to be sold to another, when attachable for vendee's debt . 245 a ordered, and placed on a vessel for transportation, cannot be at- tached as the purchaser's before bill of lading signed for them 246 shipped to a factor, may, while in transitu, be attached as the prop- erty of the shipper 246 ordered, to be paid for on arrival, cannot be attached as the pur- chaser's before they are paid for 246 772 INDEX. PERSONAL VT^OTERTY — continued. Section sold to one for resale, to be accounted for, at a future day, to the vendor, and if sold to be paid for; otherwise, to be returned; cannot be attached as property of the vendee 246 sold and delivered, upon condition that the title shall not vest in the vendee unless the price be paid within a specified time, can- not be attached for debt of the vendee till paid for ... . 246 the possession of which is acquired by fraudulent means, cannot be attached in suit against him who so acquired it, so as to hold it against the person from whom it was fraudulently obtained . 246 consigned to a factor, cannot be attached for his debt, though he have a lien on it -*" lent to one, cannot be attached for his debt 246> vested remainder in, cannot be attached during the continuance of the life-estate, while the tenant for life is in possession . . . 246 defendant's interest in, in common with others, may be attached . 248 of such a nature, that an attachment of it would injure defendant, without benefiting phiintiff, is not attachable 249 so perishable that the purpose of the attachment cannot be effected before it will decay and become worthless, cannot be attached 249 in process of manufacture, not attachable 250 in custodia leghi, not attachable 251, 267 in the defendant's present use, may be attached, but not if worn about his person as part of his apparel 252 of individuals or corporations who owe duties to the public, is not for that reason exempt from attachment, except when in actual use in the discharge of such duty 252 a may be attached, though not at the time in defendant's possession 253 found in defendant's possession, is presumed to be his 253 a manufactured by a workman out of materials furnished by another, cannot be attached for the workman's debt 254 in possession of one not its owner, is not attachable for his debt . 254 must be taken into officer's possession, in order to constitute an attachment 256, 257 heavy and unmanageable articles of, how taken and held by officer 258, 258 a attached by one officer, and in his possession, cannot be seized by another 267 if officer lose his possession of, may be attached by another . . . 271 attached, officer has special property in 290 if officer do not retain possession of, the lien of attachment is lost as to subsequent attachers or bona fide purchasers from defendant but not as against the defendant 290 officer attaching, has special property in 291 to what degree of care and diligence in keeping, he is to be held 292 attached, should not be left in defendant's possession 292 a when may be attached by another officer 292 b attached, and intermixed with other like property attached by an- other officer, effect of • 292 c removal of, by officer, into a foreign jurisdiction, effect of . . . 292 d INDEX. 773 PERSONAL VROVERTY — continued. Section abandonment of possession of, by officer's servant, effect of • . . 292 e not produced by officer on execution, what will and will not excuse 293-304 no attachment of, unless it be returned in writing on the writ . . 424 continued possession of, by officer, necessary to preserve his lien . 428 W'hat descriptions of, will charge garnishee 4G3, 480, 481 what possession of, will charge garnishee 482-491 PLAINTIFF, obtaining attachment irregularly, is a trespasser ab initio if the at- tachment be set aside for irregularity 185 b when sued for trespass, cannot set up as a defence that he returned the prop- erty to the defendant, unless the lat- ter accepted it 185 c when so sued, cannot show, in mitigation of damages, that the property was afterwards sold under execution in his favor, but may show such sale by an- other creditor 185 c cannot be specially deputized by officers to execute an attachment in his own suit 185 d giving an officer indemnity, with knowledge that the property is claimed by another than the defendant, is responsible for the officer's acts 189 directing or ratifying a levy on property not the defendant's, is liable for the trespass 196 acquires no higher or better rights in attached property, than the defendant had when the attachment -was levied 223 in attachment, cannot maintain action against a trespasser for vio- lating officer's possession of attached property 291 in first attachment, which was quashed, but the judgment quash- ing it was reversed, may recover from subsequent attacher the proceeds of the property attached by both 429 dismissing his suit, but afterwards, with the defendant's consent obtaining leave of the court to reinstate it on the docket, can- not assert priority over a subsequent attachment 429 not liable, when his judgment is reversed on grounds not affecting the merits of his claim, to refund to the defendant the money made under the judgment 430 when bound, notwithstanding his judgment against a garnishee, to refund to one whose interest in the property in respect to which the garnishee was charged was known to him before the garnishment 529 garnishing himself, cannot plead the garnishment either in "abate- ment or in bar of a suit by defendant against him .... 703 b PLEDGEE, of personalty, as security for debt, may sue by attachment on the debt without returning the pledge 33 not liable as garnishee of the pledger, in respect of the pledge 539 774 INDEX. TLEDGEFj— continued. _ Section of personalty, may be charged as garnishee in respect thereof, if he relinquish his lien by attaching the property . . 540 POSSESSIOX, what will be sufficient, to constitute an attachment 256 bv o-arnishee of defendant's property, what will make him liable . 482, •^ " 491 a PRESIDENT, of a railroad company, cannot be charged as its garnishee in respect of money thereof in its treasury 4G5 a PRIOPJTY, over other debts of an intestate garnishee, is not obtained by judg- ment against garnishee's administrator 226 in determining it, as between different levies of attachments, frac- tions of a day will be considered 201 lost by defect in plaintiff's proceedings, cannot be regained by pro- ceedings in equity 26- of service, among several attachments, how settled 265, 266 PRIVATE PAPERS, not attachable ' 249 PRIVILEGED COMMUNICATION, between client and attorney, how to be regarded when the latter is summoned and answers as garnishee of the former .... 641 PRIVITY, of contract and of interest, necessaiy to charge garnishee for prop- erty 485-490 so for indebtedness 546 PROMISSORY NOTE, garnishee holding for defendant, is not chargeable for .... 481 uunegotiable, maker of, may be charged as garnishee of payee, at any time before he receives notice of its assignment 574, 575 when garnished, should set forth in his answer an assignment of which he had previous notice 576 should bring to the notice of the court any assignment notified to him after his answer as garnishee, whetlier tlie assign- ment be legal or equitable .... 576, 577 negotiable, maker of, cannot be garnished in action against payee, under an attachment served before its ma- turity, unless before judgment therein the note had become due, and was then still the property of the defendant .... 582-588 garnishment of, in suit against the payee, is no defence to an action on it by an indorsee ac^ainst the payee 703 a notice of assignment of, should be c^iven by assignee to maker, to prevent the hitter's being charged as garnishee of the payee 718, 719 INDEX. 775 PROMISSORY 'SOTE — continued. Section maker of, pleading recovery against him as garnishee of payee, need not aver that he had uo notice of the assignment of the note 720 holder of, with express notice of previous garnishment of the maker, is barred of recourse against the maker, if the latter be charged as garnishee of the payee, and pay the amount of the note . . 721 PUBLICATION, is made where property is attached, and the defendant is not served and does not appear 5 notice by, to absent defendants, when required 436 is not necessary to confer jurisdiction 437 the fact of, must appear in the record, and how proven .... 437 a sufficiency of 439-446 insufficiency of, does not invalidate title to property acquired through the attachment 447, 448 in cases during the war of the Rebellion 448 a PUBLIC OFFICER, is not, as such, liable to garnishment 493, 512 PURCHASER, of personal property, to be paid for on arrival, has no attachable interest therein until it arrives and is paid for 246 acquiring possession of property by fraudulent means, has no at- tachable interest therein 246 R. RAILROAD, two or more connecting, when and to what extent one of them may be held as garnishee of the other as to freight collected . . . 489 not liable as garnishee, on account of the trunk of a passenger, which was at the time of service in another State 518 nor on account of goods consigned to the defendant, when it does not appear that they belonged to the consignee 518 not liable as garnishee of another railroad, on account of its cars received by it under running arrangements 518 RATIFICATION, by plaintiff, of the unauthorized act of a jiarty in signing his name to an attachment bond, effect of 134 of a levy on property not the defendant's, takes place if he defend against a claim of property by the owner 196 REAL ESTATE, may be attached, though defendant have sufficient personalty . . 233 attachment of, reaches only interest of defendant in, when made . 234 interest of mortgagee in, cannot be attached 235 attachment of, how returned 236-238 gives plaintiff a lien, but the officer acquires no special property 239, 240 undivided interests in, may be attached 241 when attachment of, is effected 242 garnishee not chargeable for 465 776 INDEX. RECEIPTOR, Section {See Bailment of Attached Prophrty.) RECEIVER, property placed in the hands of, by order of court, under a creditor's bill, cannot be attached by another creditor 251 may follow into another State, and reclaim property to which he was, as receiver, entitled, but which was wrongfully removed by another to another State, and there attached 251 of a corporation in one State, cannot successfully assert his title to property in another State, against an attachment levied on it there, before he reduced it to possession 251 appointed by a court, money in hands of, cannot be attached un- less the court has ordered it to be paid to the defendant . . 509 a of a railroad, run in connection with another road, may be charged as garnishee of the other road in respect of freights collected for it .... • 509 a RECITAL, omission of in a writ, that a bond was given, will not vitiate the attachment 119 in attachment bond, showing that it was not executed till after the writ issued, is fatal to the attachment 123 in condition of attachment bond, that plaintiff had issued a writ of attachment against defendant, estops obligors from denying that fact 169 RECORD, affidavit is part of 90 must show the facts authorizing exercise of jurisdiction by a court exercising a special and limited jurisdiction 90 attachment bond must appear in 119 reasons in favor of motion to set aside, dissolve, or quash attach- ment must be spread upon 420 the fact of publication of notice must appear in 437 a of judgment, seizure of, by officer under attachment, is no attach- ment of the judgment . 509 what is, in a garnishment proceeding 658 a must show all that the law requires to hold debt of garnishee, where he pleads its payment under attachment in bar of action by at- tachment defendant against him 712 RECOUPMENT, garnishee is entitled to, against his liability to defendant . . . 689 a REFERENCE, of attachment suit, and all demands between plaintiff and defend- ant, to arbitration, does not dissolve attachment, if no new de- mands are included 288 judgment on, against garnishee, will protect him 714 REFUSAL TO ANSWER, by garnishee, effect of 636, 657 REMOVAL, of property, as a ground of attachment 69-71 INDEX. 777 REMOVAL — continued. Section of property, attached, into a foreign jurisdiction, by the attaching officer, effect of 292 d of officer from office, does not excuse his failure to produce attached property to meet execution 299 REPLEVIN, may be maintained against officer attaching property of a stranger 196 will lie in favor of a consignee of property having privilege thereon, against officer, for attaching the property in an action against the consignor 245 will lie in favor of an officer, for a violation of his possession of at- tached effects ;• . . . . 291 REPLEVY BOXD, (See Delivery Bond.) REPRESENTATIVE PERSONS, may not be sued by attachment 81 RESIDENCE, does not necessarily involve domicile 58 no length of, without intention of remaining, constitutes domicile 58 of wife, follows that of her husband 65 a RESIDENT, defined 59 RESIGNATION, of his office, by an attaching officer, will not deprive him of his right of action for attached effects 291 RETURN, of attachment, rules concerning 204-220 is evidence in favor of the officer 210 presumed correct till the contrary appear 210 if not made in the time required by law, the officer cannot justify under the writ 210 a misdescription in, of property attached, when will not vitiate at- tachment 210 & when made, is beyond the reach of the officer or the court, unless a proper case for amendment Ve made 211 amendment of, when may be aljpwed by court 212 may not be amended as a matter of right in the officer .... 213 amendment of, relates to tils' time when the original return was made ' 215 where leave to amend is asked, there should be something to amend by 217 of attachment of real estate, how made 23G-238 rules regarding, as between attachments served on same day, 265, 265 a, 266 of attached property, defendant or owner entitled to when attach- ment is dissolved, but not until satisfactory evidence be given to the officer of the dissolution of the attachment 426 of attached property to owner, when officer is bound to make . . 427 is suspended by appeal or writ of error 428 of writ, in case of garnishment, must be made according to law . 451 d 778 INDEX. KEVERSAL, Section of judgment for plaintiff, not on the merits, after he has received proceeds of sale of attached property, does not entitle defend- ant to recover back from him the proceeds 430 S. SATISFACTION, attachments entitled to, in the order of their service 231 of plaintiff's claim against defendant, may be set up by defendant to prevent judgment against ^ garnishee 658 c may be set up by garnishee in bar of judgment against him 673 SAFE-DEPOSIT COMPANY, summoned as garnishee, cannot be required by the court to open a safe rented by the defendant, and file an inventory of its con- tents 451a SCHOOL COMMISSIONER, of a city, cannot be garnished on account of salary due to a teacher 516 of a State, cannot in such case be garnished 516 a SCHOOL DIRECTORS, cannot be garnished on account of salary due to a teacher . . . 494 SCHOOL-DISTRICT TREASURER, not chargeable as garnishee on account of money due to a teacher . 494, 512 SECURITY, collateral, the holding of, by plaintiff does not prevent his suing by attachment 35 SET-OFF, defendant may, in the attachment suit, plead damages for wrongful attachment, under an attachment bond, by way of ... . 170 b when pleadable by garnishee, against his liability to defendant 6S3-6S9 SHERIFF, money in hands of, collected on execution, not attachable in action against execution plaintiff . . ^ 251, 505 not subject to garnishment in respect thereof 503-506 nor in respect of an uncollected execution 507 but may be, in respect of a surplus in his hands, not needed to pay execution 508 SIMULTANEOUS ATTACHMENTS, are entitled, each, to an aliquot share of the proceeds of attached property 263 oflBcer executing, should refer to the court the distribution of the fund 263 a will be presumed to be so, when several were served on the same day, and nothing in the officer's retmuis shows the order in priority 265 officers executing, may divide the property 266 INDEX. 779 SLANDER, Section in action for, attachment vfiW not lie 10 SPECIAL PROPERTY, is vested in officer by levy of attachment 201 of officer, is an insurable interest 291 continues as long as he remains liable for the property, either to plaintiff or defendant 291 in attached effects, to be maintained, he must, in his proceedings N\ith them after the attachment, comply with all the requirements of the law, or show some legal excuse for not doing so 291 in event of his death, is in his administrator .... 291 SPECIFIC PROPERTY, action for recovery of, attachment will not lie in 10 STATE, cannot be garnished 516 a agent of, cannot be garnished in respect of money held by him as such 51Ga STATE AUDITOR, cannot be garnished on account of money ordered by the legislature to be paid to a party 516 a STATE COMPTROLLER, cannot be garnished on account of salary payable to a State officer, or on account of bonds deposited with him by a foreign insur- ance company 516 a STATE TREASURER, cannot be garnished on account of bonds deposited with him by a foreign insurance company, or on account of money ordered by the legislature to be paid to a party 516 a STATUTE OF FRAUDS, effect of, on verbal contracts entered into by the garnishee with tiiird persons, set up in discharge of his liability 595 garnishee not bound to set up, to avoid his verbal promise . • . 595 STATUTORY FORFEITURE, for taking usurious interest, not recoverable by attachment ... 10 STIPULATION, unsealed, does not meet the requirements of a bond with stated penalty 1-5 STOCK, in corporation not attachable, unless under express statute ... 244 when attachment of, is authorized by law, the authority extends only to the stock of corporations in the State, and not to that of corporations in other States _ • • 244 attachment of, does not incumber the property of the corporation . 244 when attachable, how the attachment is made 259 STOCKHOLDER, in a corporation, when liable as garnishee thereof, on account of unpaid portions of their stock 545 a STOPPAGE IN TRANSITU, vendor's right of, not precluded by attachment 245 780 INDEX. STORE, Section may be entered to levy an attachment 200 STRANGER, meaning of the word, under a statute authorizing attached property to be replevied by the defendant, " or, in his absence, by a stranger " 333 a rights and liabilities of 333 a SUBSEQUENT ATTACHER, cannot take advantage of defect in attachment bond in prior attach- ment suit 143 cannot be made party to prior attachment suit, for the purpose of defeating it, on account of irregularities therein 262 should place his writ in hands of the same officer who had made a prior attachment 269 cannot take advantage of any waiver made by the defendant which causes no injustice to him 273 when he may have prior attachments set aside for fraud . . . 275, 282 may maintain action against prior fraudulent attachers .... 276 against defendant and a third person, who procured debtor's property to be attached for a fictitious debt 277 is liable to previous attacher, for proceeds of attached property paid to him by officer, when the judgment quashing the previous attachment was reversed 429 SUCCESSIVE ATTACHMENTS, take effect in the order of service, though served on the same day . 261 if returns of all but one state the hour of service, that one will be postponed to the others 265 officer executmg, may in his return indicate the order of their service 265 a should be placed in the hands of the same officer 269 SUNDAY, a service of attachment on, will be set aside on motion, where the law forbids the service of writs on that day 187 but if there be no prohibitory statute, service may be on that day . 187 issue of attachment on, is an irregularity 417 SUPERSEDEAS, use of, in defeating improvident attachment 400 SURETIES, in attachment bond, insolvency of, may be taken advantage of after plea to the merits 124 if statute required attachment bond "with sureties," one will be sufficient .... 134 a if statute require " two good and sufficient secu- rities," and each of two sureties justify in an amount equal to that sworn to, it is sufficient 134 h must be good for " double the debt sworn to," when that is required by the statute, and if found not so, the plaintiff cannot reduce his demand so as to make it one-half of the amount for which they are good . . . . 134 c nroEx. 781 SURETIE S — continued. Section in attachment bond, if statute require them to be residents of the State, it is not necessary to say in the instru- ment that they are so 135 new may be substituted, if no liability on the bond has accrued, where plaintiff needs the testimony of the original sureties .... 149 liable only in reference to the particular writ for obtaining which the bond was given . . 165 may be sued jointly with the principal, where action may be maintained ou the bond with- out previous recovery of damages in a distinct action 166 a in delivery bond, may move to quash attachment .... 336 a, 419 in officer's official bond, liable for his failure to return attached property to defendant or owner, after dissolution of attachment 426 SURPLUS, of money in hands of sheriff, derived from sale of defendant's prop- erty, may be attached 508 of money in hands of a register of a court of chancery, derived from sale of lands under mortgage, may be attached 509 a SURPLUSAGE, in affidavit will not vitiate it 105 in attachment bond, will not vitiate it 130 SURVIVIXG PARTNER, in action against, for his individual debt, a credit of the late part- nership may be attached 571 T. TAXES, due to a municipal corporation, cannot be attached 516 cannot be set off by a town, when garnished, against its indebted- ness to the defendant .... 684 a TENANT IN" COMMON, of personalty, his interest in it may be attached 248 TICKET AGENT, of railroad, employed at company's office to sell tickets, cannot be charged as garnishee of the company 465 a TBIE, when debt is so due as to be proceeded on by attachment ... 32 TORT, attachment will not lie in actions for • 10 claim of defendant for, against garnishee, is no ground for charging the latter 548 TRANSFER, of attached property, by defendant, may be made, subject to the attachment 222 made after the attachment, cannot defeat it ... . 224 782 INDEX. TREASURER, Section of a railroad company, cannot be charged as its garnishee in respect of the company's money in his hands 4G5 a of a county, cannot be garnished on account of money due from the county to a defendant 493 of a school-district, cannot be charged as garnishee of a teacher . 494 of a city, cannot be charged as garnishee on account of salary of an employee of the city 512 of a State, salary of cannot be attached 516 a cannot be garnished on account of bonds deposited with him by a foreign insurance company, or on account of money ordered by the legislature to be paid to a party 516 a TREASURY NOTES, may be attached 244 TRESPASS, attachment will not lie in action of 10 will lie against officer attaching property not the defendant's . 196-198 will lie in favor of pawnee of property, against officer attaching it in an action against the pawner 245 will lie in favor of an officer for a violation of his possession of attached effects ■ 291 TRESPASSER, party is, who causes attachment to issue irregularly 185 b ■when an officer will be considered to be , 194-201 TROVER, attachment will not lie in action of 10 will lie against officer attaching property not the defendant's . . 196 will lie in favor of au officer for a violation of his possession of attached effects 291 TRUSTS, garnishment cannot overthrow, in order to reach money supposed to belong to a debtor 454 b TRUSTEE, may not be sued, as such, by attachment 81 a term used in New England to designate a garnishee .... 451 of an express trust, catniot be charged as garnishee of the ce.idd que trust, where, to hold the money in that proceeding would defeat the trust 454 b appointed by courts, or holding property which is to be disposed of by the order of a court, when chargeable as garnishee in respect thereof 509 a of insolvents, cannot be charged as garnishee in respect of property in his hands as such 511 TRUSTEE PROCESS, a terra used in New England in the sense of garnishment process . 451 INDEX. 783 u. UXCEETATNTY, Section in affidavit, will vitiate it lOi UXLTQUIDATED DA:\IAGES, when will sustain attachment 13-23 when not 32-34 claim against garnishee for, will not charge him 548 UXNEGOTIABLE NOTE, maker of may be; garnished 574-581 USE, of attached property by officer, efEect of 203 by defendant, without interfering with officer's possession or injuring the property, does not dissolve attachment 292 a, 358 rSURTOUS IXTEREST, statutory forfeiture for taking, not recoverable by attachment . . 10 V. VALUATIOX, of property attached, officer need not affix in his return .... 209 if given in his return, it will be held prima facie just and fair, as against him 20G, 310 YARIAXCE, between the affidavit and attachment and the complaint, cannot be taken advantage of by demurrer, but may by plea in abatement 36 VEXDEE, of personalty sold and delivered to him upon condition that the title shall not vest in him, unless the price be paid within a specified time, has no attachable interest therein until perform- ance of the condition 246 N VEXa^E, omission of statement of, in affidavit, does not vitiate it ... . 90 6 VERDICT, after, the defendant, if he appeared and pleaded to the merits, cannot set up that the cause of action could not be sued on by attachment 36 W. WAGER, on result of an election, may be attached in the hands of the depositary 520 WAIVER, by a defendant in an attachment suit cannot be taken advantage of by a subsequent attacher 273 784 IKDEX. WIFE, Section legal residence of, follows that of her husband 65 a husband's interest in her choses in action, can it be attached ? . . 247 of defendant, may be made keeper of attached property of her husband, when 292 c WRIT OF ERROR, by plaintiff, suspends right of defendant to return of attached prop- erty after dissolution of attachment 428 WRONG-DOER, taking attached property by, out of officer's possession, does not dissolve the attachmeut 297 University Presa : Jolin Wilson and Son, Cambridge. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 802 131 3