A TREATISE Oy THE LAW OF * SUITS BY ATTACHMENT THE UNITED STATES. A TREATISE ON THE LAW OF SUITS BY ATTACHMENT THE UNITED STATES. CHARLES D. DRAKE, LL.D., CHIEF JUSTICE OF THE UNITED STATES COURT OF CLAIMS. FIFTH EDITION, REVISED, CORRECTED, AND ENLARGED: AN APPENDIX, CONTAINING THE LEADING STATUTORY PROVISIONS OF THE SEVERAL STATES AND TERRITORIES OF THE UNITED STATES, IN RELATION TO SUITS BY ATTACHMENT. BOSTON: LITTLE, BROWN, AND COMPANY. 1878. Entered according to Act of Congress, in the year 1878, by CHARLES D. DRAKE, In the Office of the Librarian of Congress, at Washington. cambbidge: press of john wilson and son. TO 31 T BROTHER-IN-LAW, ALEXANDER H. McGUFFEY, ESQ., OF CINCINNATI, AS AN EXPRESSION OF ADMIRATION, RESPECT, AND AFFECTION, THIS WORK IS DEDICATED. 729402 PREFACE TO THE FIFTH EDITION. In preparing this edition for the press, the work in all its parts has been subjected to a more searching and exhaust- ive revision than on any previous occasion. The Reports of the whole country have been carefully explored, only to give occasion to repeat the statement made in the Preface to the First Edition, that "the lapse of time and the accumulation of adjudications seem to make no sensible diminution in the annual number of reported cases, nor any great difference in their novelty or their interest." Nearly six hundred ad- ditional cases are cited, the matter derived from which has, in almost every instance, been interwoven in the text ; several passages have been rewritten ; the Index has been much enlarged ; and the Appendix corrected by the latest Attachment laws of the several States and Territories. Notwithstanding earnest and laborious efforts — extend- ing, at intervals, through a quarter of a century — to make the work all that it should be, it were vain for me to sup- pose it without defects. Whoever will inform me of any, will receive my grateful acknowledgment. Confident, nevertheless, that the work, as now issued, will be found much improved, I recommit it to the profession. "WAsnixGTOx, D. C, September, 1878. PREFACE TO THE FIEST 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 irregular intervals, 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 everywhere asserted in the reported opinions of our higher State courts, and is universally and practically illustrated in the history of the Colonial, Territorial, and State legislation of this country. Among the early statutes 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 scope and increase the efficiency of X PKEFACE TO THE FIRST EDITION. this remedy. Upon these grounds alone the importance of this subject might, if necessary, be amply vindicated ; but on that point no doubt has at any time disturbed the prosecu- tion of my task. My conviction is, that on no branch of the law is a treatise more needed by the profession in this coun- try 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 ac- knowledged 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 gen- erally, contributes in this department comparatively noth- ing. 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 Reports with cases presenting every variety of questions, and the lapse of time and the accumulation of adjudications seem to make no sensible diminution in the annual number of reported cases, nor any great diff'erence 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 satisf\iction at being instrumental in presenting to the Bar of the United States a volume which, without intentionally slighting what is to be found in the English Reports on the subject, may be justly claimed to be thoroughly American. . . . CHARLES D. DRAKE. St. LO01S, Missouri, July 1, 1854. TABLE OF CONTENTS. PAGE Alphabetical Catalogue of American Reports xvii Index to Cases Cited xxvii CHAPTER I. SECTION Origin, Nature, and Objects of the Remedy by Attachment .... 1-8 CHAPTER 11. For what Cause of Action an Attachment may issue 9-37 a CHAPTER HI. Absent, Absconding, Concealed, and Non-resident Debtors; and Debtors removing or fraudulently disposing of their Property . . 38-77 a 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 XU CONTENTS. CHAPTER VII. SECTION Execution and Return of an Attachment 183 a-220 CHAPTER VIII. Effect and Office of an Attachment 221-231 CHAPTER IX. Attachment of Real Estate 232-242 CHAPTER X. Attachment of Personal Property 24:3-259 CHAPTER XI. Simultaneous, Successive, Conflicting, and Fraudulent Attachments . 260-289 CHAPTER XII. 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 CONTENTS. XUl CHAPTER XVIIL SECTION Garnishment. — General Views. — Division of the Subject .... 450-467 CHAPTER XIX. Who may be garnished. — Corporations. — Non-residents . . . .468-479 CHAPTER XX. What Personal Property in the Garnishee's Hands will make him hable 480, 481 CHAPTER XXI. What Possession of Personal Property by a Garnishee will make him liable 482-491 a CHAPTER XXII. The Garnishee's Liabihty, as affected by the Capacity in which he holds the Defendant's Property 492-516 b CHAPTER XXIII. The Garnishee's Liability, as aifected 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 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 XXVIH. 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 XXXI. The Garnishee's Liability, as affected by an equitable Assignment of the Debt 602-615 a CHAPTER XXXIL The Garnishee's Liability, as affected by the Commencement, Pen- dency, and Completion of Legal Proceedings against him by the Defendant, for the liecovery of the Debt 616-627 CHAPTER XXXIIL Answer of the Garnishee 628-658 CHAPTER XXXIV. Judgment against the Garnishee 658 a-659 CHAPTER XXXV. Extent of Garnishee's Liability, as to Amount, and as to the Time to which the Garnishment relates 600-671 CONTENTS. XV CHAPTER XXXVI. SECTION The Garnishee's Right of Defence against his Liability to the De- fendant 672-690 CHAPTER XXX VH. The Garnishee's Relation to the Main Action 691-698 CHAPTER XXXVIIL Where Attachment is a Defence, and the Manner of Pleading it . . 699-723 CHAPTER XXXIX. Action for Malicious Attachment 724-745 PAGE APPENDIX 645 INDEX 709 ALPHABETICAL CATALOGUE AMERICAN REPORTS/ Abbott's Admiralty Reports; U. S. Southern Dist. New York; 1vol.; 1847- 1850. Abbott's Cotirt of Appeals Cases; New York; 4 vols. ; 1803-1868. Abbott's Practice Reports; New York; 19 vols.; 1851-1805. Abbott's Practice Reports; New Series; New York; 16 vols.; 1865-1874. Abbott's New Cases; New York; 3 vols,; 1876-1877. Abbott's United States Reports ; U. S. Circuit and District Courts ; 2 vols. ; 1863-1871. Addison's Reports ; Pennsylvania ; 1 vol. ; 1791-1799. Aiken's Reports; Vermont; 2 vols. ; 1826-1827. Alabama Reports; 53 vols.; 1840-1875. Allen's Reports ; Massachusetts; 14 vols.; 1861-1867. American Law Times Reports; 6 vols.; 1868-1873. American Law Times Reports; New Series; 4 vols.; 1874-1877. Anthon's Nisi Prius Cases; New York ; 1 vol. ; 1808-1818. Arkansas Reports; 31 vols. ; 1837-1877. Ashmead's Pteports ; Pennsylvania; 2 vols.; 1808-1841. Bailey's Reports ; South Carolina ; 2 vols.; 1828-1832. Bailey's Equity Reports; South Carolina; 1vol.; 1830-1831. Baldwin's Reports; U. S. 3d Circuit; 1 vol. ; 1829-1833. Barbour's Reports; New York; 67 vols.; 1847-1877. Barbour's Chancei-y Reports; New York; 3 vols. ; 1845-1848. Bay's Reports; South Carolina; 2 vols. ; 1783-1804. Beasley's Reports; New Jersey; 2 vols. ; 1858-1860. Bee's Reports; U. S. Dist. of South Carolina; 1 vol.; 1792-1809. Benedict's Reports; U. S. Districts of New York; 7 vols.; 1865-1875. *This Catalogue includos all American Reports received in the Library of Congress up to June 18, 1878; at which time the examination of the Ileports, with reference to this edition of this work, was closed. The list is believed to be complete and accurate. b XYIU ALPHABETICAL CATALOGUE Bibb's Reports; Kentucky; 4 vols.; 1808-1817. Binney's Reports; Tennsylvania; 6 vols. ; 1799-1814. Bissell's Reports; U. S. 7th Circuit; 5 vols.; 1853-1876. Black's Reports; U. S. Supreme Court; 2 vols.; 1861-1862. Blackford's Reports; Indiana; 8 vols. ; 1817-1847. Bland's Chancery Reports; Maryland; 3 vols.; 1811-1832. Blatchford's Prize Cases; U. S. Dist. of New York; 1 vol. ; 1861-1865. Blatchford's Reports; U. S. 2d Circuit; 13 vols.; 184.3-1876. Blatchford & Ilowland's Reports; U. S. Southern Dist. of New York; 1 vol.; 1827-1837. Bond's Reports; U. S. Courts, Ohio; 2 vols.; 1856-1871. Bosworth's Reports; New York; 10 vols.; 1856-1864. Bradford's Reports; New Y^ork; 4 vols. ; 1849-1857. Brayton's Reports ; Vermont; 1vol.; 1815-1819. Breese's Reports; is vol. 1 of Illinois Reports. Brevard's Reports; South Carohna; 3 vols. ; 1793-1816. Brewster's Reports; Pennsylvania; 4 vols. ; 1856-1873. Brightley's Reports ; Pennsylvania; 1vol.; 1809-1851. Brockenbrough's Reports; U. S. 4th Ckcuit; 2 vols. ; 1802-1833. Browne's Reports; Pennsylvania; 2 vols. ; 1806-1814. « Burnett's Reports; Wisconsin; 1vol.; 1842. Busbee's Reports; North Carolina; 1vol.; 18.52-1853. Busbee's Equity Reports; North CaroUna; 1 vol.; 1852-1853. Bush's Reports; Kentucky; 12 vols.; 1866-1877. Gaines's Cases; New York; 2 vols, hi 1; 1804-1805. Caines's Reports; New York; 3 vols. ; 1803-1805. California Reports ; 51 vols.: 1850-1877. Call's Reports; Virginia; 6 vols. ; 1797-1825. Carolina Law Repository; North Carolina; 2 vols. ; 1813-1816. Chandler's Reports; Wisconsin; 4 vols.; 1849-1852. Charlton's (T. U. P.) Reports; Georgia; 1 vol.; 1805-1810. Charlton's (R. M.) Reports; Georgia; 1 vol.; 1811-1837. Cheves's (Law and Equity) Reports; South Carohna; 2vols.ini; 1839-1840. Chipman's (N.) Reports; Vermont; 1vol.; 1789-1791. Chipman's (D.) Reports; Vermont; 2 vols.; 1789-1825. Cincinnati Superior Court Reporter; Ohio; 2 vols.; 1870-1873. Clarke's Chancery Reports; New l'"ork; 1 vol.; 1839-1841. Chfford's Reports; U. S. 1st Circuit; 2 vols. ; 1858-1867. Code Reporter; New Y'ork ; 3 vols. ; 1848-1850. Code Reports; New York; 1 vol.; 1851-1855. Cold well's Reports; Tennessee; 7 vols.; 1860-1870. Coleman's Cases; New York; 1 vol. ; 1794-1800. *Coleman & Caines's Cases; New York; 1 vol.; 1794-1805. Colorado Reports; 2 vols.; 1864-1875. Coinstock's Reports; New York; 4 vols.; 1847-1851. * Tills i.s a reprint of Coleman's Cases entire, with additional cases reported by Caines. OF AMERICAN REPORTS. XIX Conference Reports; North Carolina; 1 vol.; 1800-1804. Connecticut Reports ; 43 vols. ; 1814-1870. *Constitutional Court Reports, by Treadway ; South Carolina; 2 vols.; 1812- 1816. fConstitutional Court Reports, by Mills; South Carolina; 2 vols ; 1817-1818. Cooke's Reports; Tennessee; 1vol.; 1811-1814. Court of Claims Reports; U. S. Court of Claims; 12 vols.; 1863-1876. Cowen's Reports; New York; 9 vols.; 1823-1829. Coxe's Reports; New Jersey; 1vol.; 1790-1795. Crabbe's Repoi'ts; U. S. Eastern Dist. of Pennsylvania; 1 vol.; 1836-1846. Cranch's Reports; U. S. Supreme Court; 9 vols.; 1800-1815. Cranch's Circuit Court Reports; District of Columbia; 6 vols. ; 1801-1841. Curtis's Reports; U. S. 1st Circuit; 2 vols.; 1851-1856. Cushing's Reports ; Massachusetts; 12 vols. ; 1848-1853. Dallas's Reports; U. S. Supi-eme Court, and Pennsylvania; 4 vols.; 1754- 1806. Daly's Reports; New York; 5 vols. ; 1859-1878. Dana's Reports; Kentucky; 9 vols. ; 1833-1840. Daveis's Reports; U. S. Dist. of Maine; 1 vol.; 1839-1849. Day's Reports; Connecticut; 5 vols. ; 1802-1813. Deady's Reports; U. S. Courts of Oregon and California; 1 vol.; 1859-1869. ' Delaware Chancery Reports; 2 vols. ; 1814-1865. Deuio's Reports; New York; 5 vols. ; 1845-1848. Dessaussure's Reports; South Carolina; 4 vols. ; 1784-1817. Devereux's Reports; U. S. Court of Claims; 1 vol.; 1856. Devereux's Reports; North Carolina; 4 vols. ; 1826-1834. Devereux's Equity Reports ; North Carplina ; 2 vols. ; 1828-1834. Devereux & Battle's Reports; North Carolina; 4 vols, in 3; 1834-1839. Devereux & Battle's Equity Reports; North Carolina; 2 vols.; 1834-1840. Dillon's Reports; U S. 8th Circuit; 3 vols.; 1870-1876. Disney's Reports; Ohio; 2 vols.; 1854-1860. Douglass's Reports ; Michigan; 2 vols. ; 1843-1847. Dudley's Reports; Georgia; 1vol.; 1831-1833. Dudley's Reports; South CaroUna; 1 voh; 1837-1838. Dudley's Equity Repoi'ts; South Carolina; 1 vol.; 1837-1838, Duer's Reports; New York; vols. ; 1852-1856. Dutcher's Reports; New Jersey; 5 vols. ; 1855-1862. Duvall's Reports; Kentucky; 2 vols.; 1863-1866. Edmonds's Reports; New York; 1 vol. ; 1834-1848. Edwards's Chancery Reports; New York; 4 vols. ; 1731-1850. Florida Reports; 14 vols. ; 1846-1874. Foster's Reports; New Hampshire; 11 vols.; 1850-1855. Should be vols. 21-31 of New Hampshire Reports. Freeman's Reports; Mississippi; 1vol.; 1839-1843. * No Reporter's name given : generally cited by the name of the publisher, Treadwaj-. t No Keporler's name given : generally cited by the name of the publisher, Mills. XX ALPHABETICAL CATALOGUE Gallisou's Reports; U. S. 1st Circuit; 2 vols.; 1812-1815. Georgia Decisions; 1vol.; 1812-184:3. Georgia Reports; 58 vols. ; 1846-1877. Gill's Reports; Maryland; 9 vols.; 184.3-1851. Gill & Johnson's Reports; Maryland; 10 vols. ; 1829-1843. Gihnan's Reports; are vols. 6-10 of Illinois Reports. Gilmer's Reports; Virginia; 1 vol.; 1820-1821. Gilpin's Reports; U. S. East. Dist. of Pennsylvania; 1 vol.; 1828-1836. Grant's Repoi-ts; Pennsylvania; 3 vols. ; 1852-1803. Grattan's Reports; Virginia; 28 vols. ; 1844-1877. Gray's Reports; Massachusetts; 16 vols.; 1854-1860. Green's Reports; New Jersey; 3 vols. ; 1831-1836. Green's Chancery Reports; New Jersey; 3 vols.; 1838-1846. Green's (C. E.) Reports. See New Jersey Equity Reports. Greene's (G.) Reports; Iowa; 3 vols. ; 1847-1852. Hall's Reports; New York; 2 vols. ; 1828-1829. Halsted's Reports; New Jersey; 7 vols. ; 1821-1831. Halsted's Chancery Reports; New Jersey; 4 vols. ; 1845-1852. Handy 's Reports; Ohio; 2 vols. ; 1854-1856. Hardin's Reports; Kentucky; 1 vol.; 1805-1808. Harper's Reports; South Carolina; 1vol.; 1823-1824. Harper's Equity Reports; South Carolina; 1vol.; 1824. Harrington's Reports; Delaware; 5 vols. ; 1832-1855. Harrington's Chancery Reports; Michigan; 1vol.; 1838-1842. Harris & Gill's Reports; Maryland; 2 vols.; 1826-1829. Harris & Johnson's Reports; Maryland; 7 vols. ; 1800-1826. Harris & McHenry's Reports; Maryland; 4 vols. ; 1700-1799. Harrison's Reports; New Jersey; 4 vols. ; 1837-1842. Hawks's Reports; North Carolina; 4 vols.; 1820-1826. Haywood's Reports; North Carolina; 2 vols.; 1789-1806. Haywood's Reports; Tennessee; 3 vols. ; 1816-1818. Head's Reports; Tennessee; 3 vols. ; 1858-1859. ^ Heiskell's Reports; Tennessee; 9 vols.; 1870-1876. Hempstead's Reports; Arkansas; U. S. Circuit & District of Arkansas; 1 vol. ; 1820-1856. Heuing & Munford's Reports; Virginia; 4 vols. ; 1806-1809. Hill's Reports; New York; 7 vols.; 1841-1845. Hill's Reports; South Carolina; 3 vols.; 1833-1837. Hill's Chancery Reports; South Carolina; 2 vols. ; 1838. Hilton's Reports; New York; 2 vols. ; 1855-1859. Hoffman's Reports; New York; 1vol.; 1839-1840. Holmes's Reports; U. S. 1st Circuit; 1vol.; 1870-1875. Hopkins's Reports; New York; 1vol.; 1823-1826. Hopkinson's Admiralty Cases; Pennsylvania; 1 vol.; 1785-1786. Houston's Reports; Delaware; 4 vols.; 1856-1874. Howard's Cases; New York; 1 vol.; 1847-1848. Howard's Reports; U. S. Supreme Court; 24 vols.; 1843-1860. OF AMERICAN REPORTS. XXI Howard's Reports; Mississippi; 7 vols. ; 1834-1843. Howard's Practice Reports; New York; 53 vols. ; 1844-1877. Hughes's Reports; Kentucky; 1vol.; 1785-1801. Hughes's Reports; U. S. 4th Circuit ; 2 vols. ; 1874-1877. Humphrey's Reports; Tennessee; 11 vols.; 1839-1851. Idaho Reports; 1vol.; 1866-1867. Illinois Reports; 82 vols.; 1819-1876; embracing Breese's Reports, 1 vol.; Scammon's Reports, 4 vols.; Gilman's Reports, 5 vols.; and the rest styled Illinois Reports. Indiana Reports; 57 vols. ; 1848-1877. Iowa Reports; 45 vols. ; 1855-1877. Iredell's Reports; North Carolina; 13 vols.; 1840-18.52. Iredell's Equity Reports ; North CaroUua; 8 vols.; 1840-1852. Jefferson's Reports; Virginia; 1 vol.; 1730-1740; 1768-1772. Johnson's Cases ; New York; 3 vols. ; 1799-1803. Johnson's Reports; New York; 20 vols.; 1806-1823. Johnson's Chancery Reports; New York ; 7 vols.; 1814-1823. Jones's Reports ; North Carolina; 8 vols.; 1853-1862. Jones's Equity Reports; North Carolina; 6 vols. ; 1853-1860. Kansas Reports; 18 vols. ; 1862-1877. Kentucky Decisions ; 1vol.; 1801-1805. Kernan's Reports; New York; 4 vols.; 1854-1857. Keyes's Reports; New York; 4 vols. ; 1864-1868. Kirby's Reports; Connecticut; 1 vol.; 1785-1788. Lalor's Reports ; New York; 1vol.; 1842-1844. Lansing's Reports; New York; 7 vols.; 1869-1873. Legal Gazette Reports; Pennsylvania; 1 vol. ; 1869-1872. Leigh's Reports; Virginia; 12 vols. ; 1829-1841. Littell's Reports; Kentucky; 5 vols.; 1822-1824. Littell's Select Cases; Kentucky; 1vol.; 1795-1821. Louisiana Reports ; 19 vols. ; 1830-1841. Louisiana Annual Reports; 29 vols. ; 1846-1877. Lowell's Decisions; U. S. Courts, Massachusetts; 2 vols.; 1865-1877. Mac Arthur's Reports; Dist. of Columbia; 2 vols.; 1873-1876. McAlUster's Reports; U. S. Circuit for CaUfornia; 1 vol.; 1855-1859. McCahon's Reports; Kansas; 1vol.; 1858-1861. McCarter's Reports; New Jersey; 2 vols. ; 1861-1863. McCord's Reports; South Carohna; 4 vols.; 1820-1828. McCord's Chancery Reports; South Carolina; 2 vols.; 1825-1827. McLean's Reports; U. S. 7th Circuit; 6 vols.; 1829-1854. Mc:\Iullan's Reports; South Carolina; 2 vols.; 183-5-1842. McMullan's Equity Reports; South Carolina; 1 vol. ; 1810-1842. Maine Reports; 60 vols.; 1820-1877. XXU ALPHABETICAL CATALOGUE Marshall's (A. K.) Reports; Kentucky; 3 vols.; 1S17-1821. Marshall's (J. J.) Reports; Kentucky; 7 vols.; 1829-1832. Martin's Reports; North Carolina; 2 vols.; 1790-1796. Martin's Reports; Louisiana; 12 vols. ; 1809-1823. Martin's Reports; New Series; Louisiana; 8 vols. ; 1823-1830. Martin & Yerger's Reports; Tennessee; 1vol.; 1825-1828. Marj'land Reports; 45 vols.; 1851-1876. Maryland Chancery Reports; 4 vols.; 1847-1854. Mason's Reports; U. S. 1st Circuit; 5 vols. ; 1816-18-30. *Massachusetts Reports; 17 vols. ; 1804-1822; and vols. 97-122; 1807-1877. Meigs's Reports ; Tennessee; 1vol.; 1838-1839. Metcalf's Reports; Massachusetts; 13 vols.; 1840-1847. Metcalfe's Reports; Kentucky; 4 vols. ; 1858-1863. Michigan Reports; 35 vols. ; 1847-1877. Miles's Reports; Pennsylvania; 2 vols. ; 1835-1840. Minnesota Reports ; 23 vols. ; 1851-1877. Minor's Reports; Alabama; 1vol.; 1820-1826. fMississippi Reports ; vols. 23-53; 1850-1876. Missouri Reports; 64 vols.; 1821-1877. Missouri Appeal Reports; 2 vols. ; 1876. JMonroe's Reports; Kentucky; 7 vols. ; 1824-1828. Monroe's (B.) Reports; Kentucky; 18 vols.; 1840-1857. Montana Reports; 2 vols. ; 1868-1877. Morris's Reports; Iowa; 1vol.; 1839-1845. Munford's Reports; Virginia; 6 vols. ; 1810-1820. Murphey's Reports; North Carohna; 3 vols. ; 1804-1819. National Bankruptcy Register Reports; 10 vols. ; 1867-1876. Nebraska Reports ; 5 vols. ; 1877. Nevada Reports; 11 vols. ; 1865-1877. Newberry's Admiralty Reports; U. S. Dist. Courts; 1 vol.; 1852-18.57. ||New Hampshire Reports; vols. 1-20, 1810-1849; vols. 32-57, 1855-1876. §New Jersey Law Reports; vols. 30-39; 1863-1877. * After forty-five years of publication of the Reports of this State under the names of the Reporters, their publication under the name of the State is resumed. The complete series is as follows: Massachusetts, 17 vols.; Pickering, 24 vols.; Metcalf, 13 vols.; Gushing, 12 vols.; Gray, 16 vols. ; Allen, 14 vols. ; Massachusetts, vols. 97-122. t The preceding twentj'-two volumes of the Reports of Mississippi were. Walker, 1 vol.; Howard, 7 vols. ; and Smedes & Marshall, 14 vols. t The cases reported in 2 Monroe, being those decided by the "New Court," — a judicial tribunal which was declared to be unconstitutional, — are not regarded as authority in Ken- tucky. II The hiatus in the numbering of the New Hampshire Reports is caused by the publica- tion of eleven volumes of the Reports of that State under the title of " Foster's Reports;" which should be vols. 21-31 of New Hampshire Reports; and they are now frequentlj- cited in that State under the latter title, with the volume number they would have had if they had been published by that name in regular series. § The preceding twent3'-niiie volumes of New Jersey Law Reports, published under the names of the Reporters, were, Coxe, 1 vol.; Pennington, 2 vols.; Southard, 2 vols.; Hal- sted, 7 vols ; Green, 3 vols.; Harrison, 4 vols.; Spencer, 1 vol.; Zabriskie, 4 vols.; Dutcher, 5 vols. or AMERICAN REPORTS. xxiii *New Jersey Equity Reports ; vols. 16-28; 1863-1877. fNew York Reports; vols. 15-68; 1857-1877. |New York Superior Court Reports; vols. 33-43; 1871-1875. ||New York Supreme Court Reports; vols. 8-19; 1874-1878. §North Carolina Reports; vols. 63-78; 1868-1878. North Carolina Term Reports; 1 vol.; 1816-1818. Nott & McCord's Reports; South Carolina; 2 vols.; 1817-1820. Ohio Reports; 20 vols.; 1821-1851. Ohio State Reports; 29 vols.; 1852-1876. Olcott's Reports; U. S. Southern Dist. of New York; 1 vol.; 1843-1850. Oregon Reports; 5 vols.; 1853-1875. Paige's Chancery Reports; New York; 11 vols.; 1828-1845. Paine's Reports; U. S. 2d Circuit; 2 vols.; 1810-1840. Parker's Criminal Reports; New York; 6 vols.; 1839-1868. Parsons's Select Equity Cases; Pennsylvania; 2 vols. ; 1841-1850. Patton, Jr., & Heath's Reports; Virginia; 2 vols.; 1855-1857. Peck's Reports; Tennessee; 1vol.; 1822-1824. Pennington's Reports; New Jersey; 2 vols, in 1; 1806-1813. Pennsylvania Law Journal Reports; 5 vols. ; 1841-1873. T[Pennsylvania State Reports; 84 vols. ; 1844-1877. * The preceding fifteen volumes of New Jersej' Equity Reports, published under the names of the Reporters, were, Saxton, 1 vol.; Green, 3 vols. ; Halsted, 4 vols. ; Stockton, 3 vols. ; Beasley, 2 vols. ; McCarter, 2 vols. t The preceding fourteen volumes of the Reports of the New York Court of Appeals were, Comstock, 4 vols. ; Selden, 6 vols. ; and Kernan, 4 vols. t The preceding thirty-two volumes of the Reports of the New York Superior Court, pub- lished under the names of the Reporters, were, Hall, 2 vols. ; Sandford, 5 vols. ; Duer, 6 vols. ; Bosworth, 10 vols. ; Robertson, 7 vols. ; Sweeny, 2 vols. II These reports are a continuation of a series, the first seven volumes of which are Lan- sing's Reports. § Prior to 18G8 the Reports of North Carolina were mostly published under the names of the Reporters, and numbered, as originally published, sixty-nine volumes: but, in reprinting and condensing some of them, the number of separate volumes was reduced to sixty-two; and, when the publication of the Reports under the name of the State was begun, the first volume of the series was numbered G3. The preceding Law Reports were as follows: Haj'wood, 2 vols.; Martin, 2 vols.; Taylor, 1 vol.; Conference (Cameron & Norwood), 1 vol.; Murphey, 3 vols.; Carolina Law Repository, 2 vols.; North Carolina Term Reports, 1 vol ; Hawks, 4 vols. ; Devereux, 4 vols.; Devereux & Battle, 4 vols. ; Iredell, 13 vols. ; Busbee, 1 vol. ; Jones, 8 vols.; Winston, 1 vol.; Phillips, 1 vol. Tlie Equity Reports were as follows: Devereux, 2 vols.; Devereux & Battle, 2 vols. ; Iredell, 8 vols. ; Busbee, 1 vol. ; Jones, vols.; Winston, 1 vol.; Phillips, 1 vol. TT Since 1844 the Reports of the Supreme Court of Pennsylvania have, by law of that State, been styled " Pennsylcania Slate Reports ; " but they are rarely cited there by that name, either by the Bench or the Bar; but usually by the names of tlie Reporters. In this work they are cited by tiieir legal and proper name; but, for the information of those in other States who may be confused bj' the citations contained in the Reports themselves, I give the names of the Reporters, with the number of volumes reported by each, viz.: Barr, vols. 1-10; Jones, vols. 11, 12; Harris, vols. 13-24; Casey, vols. 25-36; AV right, vols. 37-50 ; Smith, vols. 51-67. XXIV ALPHABETICAL CATALOGUE Penrose & Watts's Reports; Pennsylvania; 3 vols. ; 1829-1832. Peters's Reports; U. S. Supreme Court; 1(3 vols.; 1828-1842. Peters's Circuit Court Reports; U. S. 3d Circuit; 1 vol.; 1803-1818. Peters's Admiralty Decisions ; U. S. Dist. of Pennsylvania ; 2 vols. ; 1792- 1807. Philadelphia Reports; Pennsylvania; 9 vols. ; 1851-lS7-i. Phillips's Reports; North Carolina; 1vol.; 1866-1868. Phillips's Equity Reports; North Carolina; 1 vol. ; 186G-1868. Pickering's Reports; Massachu-setts ; 24 vols. ; 1822-1840. Pinney's Reports; Wisconsin; 3 vols. ; 1839-18.52. Pittsbui'gh Reports; Pennsylvania; 3 vols. ; 1853-1867. Porter's Reports; Alabama; 9 vols.; 1834-1839, Quincy's Reports; Massachusetts; 1vol.; 1761-1772. Randolph's Reports; Virginia; 6 vols.; 1821-1828. Rawle's Reports; Pennsylvania; 5 vols.; 1828-1835. Redfield's Reports; New York; 2 vols.; 1857-1877. Rhode Island Reports ; 10 vols. ; 1828-1877. Rice's Reports; South Carolina; 1 vol.; 1838-1839. Rice's Chancery Reports ; South Carolina; 1vol.; 1838-1839. Richardson's Reports; South Carolina; 15 vols.; vols. 1-4, 1844-1847; vols. 5-15, 1850-1868. *Richardson's Equity Reports; South Carolina; 14 vols. ; vols. 1 and 2, 1814- 1846; vols. 3-14, 1850-1868. Riley's Reports; South Carolina; 1 vol.; 1836-1837. Riley's Chancery Reports; South Carolina; 1 vol.; 1836-1837. Robertson's Reports; New York; 7 vols.; 1863-1868. Robinson's Reports; Louisiana; 12 vols. ; 1841-1846. Robinson's Reports; Virginia; 2 vols. ; 1842-1844. Rogers'sCity Hall Recorder; New York; 6 vols. ; 1816-1821. Root's Reports; Connecticut; 2 vols. ; 1789-1798. Sandford's Superior Court Reports; New York; 5 vols.; 1847-1852. Sandford's Chancery Reports; New York; 4 vols.; 1843-1847. Sawyer's Reports; U. S. 9th Circuit; 4 vols.; 1870-1877. Saxton's Reports; New Jersey; 1 vol.; 1830-1832. Scammon's Reports; 4 vols. ; are vols. 2-5 of Illinois Reports. Seldeu's Reports; New York; 5 vols. ; 1851-1854. Sergeant & Rawle's Reports; Pennsylvania; 17 vols. ; 1818-1829. Shepherd's Select Cases; Alabama; 1vol.; 1861-1863. Smedes & Marshall's Reports ; Mississippi; 14 vols. ; 1841-1850. Smedes & Marshall's Chancery Reports ; Mississippi; 1vol.; 1840-1843. f Smith's Reports; Indiana; 1vol.; 1848-1849. Smith's (E. D.) Reports; New York; 4 vols.; 18-50-1855. Sneed's Reports; Tennessee; 5 vols.; 1853-1858. * Vol. 12 of Richardson's Equity Reports is bound up with vol. 1-3 of his Law Reports. t The cases reported iu this volume are regularly reported in 1 Indiana Reports. OF AMERICAN REPORTS. XXV Southard's Reports; New Jersey; 2 vols.; 1816-1820. South Carolina Reports; New Series; 6 vols. ; 1868-1876. Speers's Reports; South Carolina; 2 vols. ; 1843-1844. Speers's Equity Reports; South Carolina; 1vol.; 1842-1844. Spencer's Reports; New Jersey; 1vol.; 1842-1845. Sprague's Decisions; U. S. Dist. of Massachusetts; 2 vols.; 1841-1864. Stewart's Reports; Alabama; 3 vols.; 1827-1831. Stewart & Porter's Reports; Alabama; 5 vols. ; 1831-1834. Stockton's Reports; New Jersey; 3 vols. ; 1852-1859. Story's Reports; U. S. 1st Circuit; 3 vols.; 1839-1845. Strobhart's Reports ; South Carolina; 5 vols. ; 1846-1850. Strobhart's Equity Reports; South Carolina; 4 vols. ; 1846-1850. Sumner's Reports ; U. S. 1st Circuit ; 3 vols. ; 1830-1839. Swan's Reports; Tennessee; 2 vols.; 1851-1853. Sweeny's Reports; New York; 2 vols.; 1869-1870. Taney's Decisions; U. S. 4th Circuit; 1 vol.; 1836-1861. Tappau's Reports; Ohio; 1vol.; 1816-1819. Taylor's Reports; North Carolina; 2 vols.; vol. 1, 1798-1802; vol. 2, 1816- 1818. Tennessee Reports; 2 vols. ; 1791-1815. Tennessee Chancery Reports; 2 vols. ; 1872-1877. *Texas Reports ; 47 vols.; 1846-1877. Texas Court of Appeals Reports; 1 vol.; 1876-1877. Thacher's Criminal Cases; 1 vol.; 1823-1843. Tucker's Reports; New York; 1vol.; 1864-1869. Tyler's Reports; Vermont; 2 vols. ; 1800-1803. •fUnited States Reports; U. S. Supreme Court; vols. 91-95; 1875-1877. Utah Reports; 1vol.; 1850-1876. Van Ness's Prize Cases; U. S. Dist. of New York; 1 vol. ; 1814. Vermont Reports; 49 vols.; 1826-1877. Virginia Cases; 2 vols. ; 1789-1826. Vroom's Reports. See New Jersey Law Reports. Walker's Reports ; Mississippi; 1vol.; 1818-1832. Walker's Chancery Reports; Michigan; 1 vol.; 1842-1845. Wallace's Reports; U. S. 3d Circuit; 1 vol.; 1801. Wallace's Reports; U. S. Supreme Court; 23 vols.; 1863-1870. Wallace, Jr.'s Reports; U. S. 3d Circuit; 3 vols.; 1842-1862. Ware's Reports; U. S. Dist. of Maine; 3 vols.; 1822-1865. * There are two volumes 2.5 of Texas Reports, tlie second styled " Supplement." Cases decided by the Supreme Court of the Kepublic of Texas may be Ibund in Dallam's Digest of the Laws of Texas, published in 184.5. t The preceding Reports of the Supreme Court of the United States were, Dallas, 4 vols.; Cranch, 9 vols.; Wheaton, 12 vols.; Peters, IG vols.; Howard, 24 vols.; Black, 2 vols. ; Wallace, 2-3 vols. XXvi ALPHABETICAL CATALOGUE, ETC. Washington's Reports ; Virginia; 2 vols. ; 1790-179G. Washington's Circuit Court Reports; U. S. 3d Circuit; 4 vols. ; 1803-1827. Watts's Reports ; Pennsylvania; 10 vols. ; 1832-184:0. Watts & Sergeant's Reports ; Pennsylvania; 9 vols. ; 1841-1814. AVendell's Reports; New York; 2G vols. ; 1828-1841. West Virginia Reports; 10 vols. ; 1863-1877. Wharton's Reports; Pennsylvania; 6 vols. ; 1835-1841. Wheaton's Reports ; U. S. Supreme Court; 12 vols. ; 1816-1827. Wheeler's Criminal Cases ; New York; 3 vols. ; 1776-1824. Winston's Reports; North Carolina; 1vol.; 1863-1864. Winston's Equity Reports ; North Carolina; 1vol.; 1863-1864. AVisconsin Reports ; 42 vols. ; 1853-1877. Woodbury & Minot's Reports ; U. S. 1st Circuit; 3 vols. ; 1845-1847. Woods' Reports; U. S. 5th Circuit; 2 vols.; 1870-1875. Woolworth's Reports ; U. S. 8th Circuit ; 1 vol. ; 1863-1869. Wright's Reports ; Ohio; 1vol.; 1831-1834. Wythe's Chancery Reports; Virginia; 1 vol. ; 1788-1799. Y^ates's Select Cases; New York; 1 vol. ; 1811. Y''eates's Reports ; Pennsylvania; 4 vols. ; 1791-1808. Yerger's Reports ; Tennessee; 10 vols. ; 1832-1837. Zabriskie's Reports ; New Jersey; 4 vols. ; 1847-1855. INDEX TO CASES CITED. The References are to the Sections. Section Abbott V. Sheppard 449 V. Warriner 405 Accessory Transit Co. v. McCer- ren 176, 732 Ackroyd v. Ackroyd 34 Adams v. Avery 546, 588, 700 V. Balch 304 V. Barrett 463, 497, 506, 541 V. Cordis 665 V. Filer 706 V. Fox 392 V. Lane 508 V. jSTewell 246 V. Paio-e 277 V. Robinson 216, 528, 610 V. Scott 518 V. Tyler 516 Adlum V. Yard 654, 655 Albany City Ins. Co. v. Whitney 317 A]bee\\ Webster 199 Aldrioh v. Brooks 550 V. Kinney 87 a V. Woodcock Alexander v. Brown V. Haden V. Harrison 453 418 108 733, 734, 743 V. Hutchison 174 V. Jacoby 162 a, 163, 175, 176, 726 V. Pardue 115 Alford V. Johnson 133 Allard v. De Brot 698 Allegheny Savings Bank v. Meyer 659, 665 Allen V. Brown 95 V. Butler 381 V. Carty 374 Section Allen V. Doyle 310, 344, 372 V. Erie City Bank 481 V. Fleming 108 V. Hall 536, 659, 660, 667, 685, 690 V. McCalla 255 a V. Megguire 536 V. Morgan 583, 659 V. Watt 710 Alley V. Myers 262, 658 a Alston V. Clay 251, 509 V. Newcomer 65 American Bank v. Rollins 619 V. Snow 625 American Ex. Bank v. Morris C. & B. Co. 221, 229 Amos V. Allniitt 126 Amoskeag Man. Co. v. Gibbs 588 Anderson v. Coburn 112, 446 a, 448 V. Doak 245 15. Graff 204, 658 e V. O'Reilly 75 V. Scott 207 V. Wanzer 565 V. Young 706 Andre v. Fitzhugh 325 Andrews v. Herring 630 V. Ludlow 481, 482, 483, 539 Angier v. Ash Anthony v. Comstock Archer v. Claflin V. Noble Arendale v. Morgan Argyle v. Dwinel Arledge v. White Armor v. Cockburn Armstrong v. Blodgett Arnold v. Brown Arrington v. Screws 225 345, 386 106, 406 196 89"a 241 455, 543, 683 517 407 222 247 XXVlll INDEX TO CASES CITED. Artliur v. Ratte Asliby V. Watson Ashmun r. Williams Atclie.son r. Smith Atkins V. Kinnan V. Prescott Atkinson v. Foxworth Atlantic F. & M. Ins son Atlantic ]\Iut. Ins. Co Atlas Bank v. Nahant Austin V. Bodley V. Burgett V. Burlington V. Latham V. W^ade Auter V. Steamboat J, Averill v. Tucker Avet V. Albo Aver V. Jameson Ayres v. Husted Section 454, 619 637, 08;^ 250 696, 697, 711 87 b 561, 562, 570 331), 341, 741 Co. V. Wil- 658 e V. McLoon 27 Bank 231 5 37 a, 227, 331 285, 344 94 2-22 105 512 332 374 275 Jacobs B. Babb V. Elliott Babcock v. Malbie Bach V. Goodrich Bacon v. Daniels V. Leonard V. Thorp Badlam v. Tucker 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 V. Hunt V. Moody V. Warren Balderston v. Manro Baldwin v. Conger V. Jackson i\ Leftwich V. Morrill Ball V. Citizens' Nat. Bank 679 V. Claflin 262, 273, 285 V. Gardner 152 V. Gilbert 520 V. Liney 185 c Balliet i: Scott 594, 614 247 245 224 323, 381 237 373 245, 291, 371, 539 221, 224 a 271, 292 b 198 95 307 465 a 454 a, 536 223 62 216 280 351, 353, 372, 380 93 525, 659 292 a, 353, 357 527 205, 415 290, 292 a, 358 229 673 Section Ballinger v. Lantier 64 Ballston Spa Bank v. Marine Bank 465 a Baltimore v. Root 516 Baltimore &Ohio R. R. Co. v. Gal- lahue 409, 472, 479, 551, 559, 655 Baltimore & Ohio R. R. Co. v. McCullough B;iltimore & Ohio May Baltimore & Ohio Wheeler Bancker v. Brady Bancroft v. Sinclair Bank v. Levy Bank of Alabama v. R. R. Co. 553 705, 706 R. R. Co. V. 517 246 204 534 Berry . 107 V. Fitzpatrick 115, 124 Bank of Augusta v. Conrey 122, 134, 415 V. Jaudon 262, 273 Bank of Chester v. Ralston 498 Bank of Fayetteville v. Spurling 274 Bank of North America v. McCall 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 246, 516 a Banning v. Sibley 659 Bannister v. Higginson 207, 219 Banta v. Reynolds 117, 185 Barber v. Robeson 25 Barkeloo ?7. Randall 118 Barker v. Esty 547, 548 V. Miller 291, 349 V. Taber 652 Barksdale v. Hendree 87 b Barnard v. Graves 487, 514, 674 d V. Moore 539 V. Sebre 101 Barnes v. Buck 27 V. Treat 499 V. W^ayland 653, 654, 055 V. Webster 151, 327 a Barnet's Case 60, 62 Barnett v. Weaver 499 Barney v. Douglass 588 Barr v. Perry 696 Barrett v. Spa'ids 732 a V. White 194 Barron v. Cobleigh 363, 391, 392 Barrow v. West 706 Barry v. Bockover 67 INDEX TO CASES CITED. XXIX Section Barry v. Fisher 570 V. Foyles 318 V. Hoiian 658 c Bartlett v. Wood 550 Barton v. Albright 707 V. Smith 711 Bassett v. Garth waite 588 Batchehler v. Frank SU Bates V. Jenkins 405 V. New Orleans, &c. R. R. Co. 474, 551 V. Robinson 91 Battles j;. Simmons 640 Bauer v. Antoine 318 Baugh V. Kirkpatrick 453 rt Baune v. Thoniassin 10 Bausman v. Smith 21 Baxter v. Currier 465 V. Rice 208 V. Vincent 474, 707 Bayley v. Bryant 281 Baylies v. Jloughton 581 Beach v. Abbott 351 , 353, 382 V. Sclimultz 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 r. Parker 336 Beardslee v. Morgan 147 Bebb V. Preston 659 Beck r. Brady 229 Beckwith v. Baxter 499 V. Sibley 35 Beech v. Abbott 437, 448 Beecher v. James 144 Beekman v. Lansing 255 a Beers v. Arkansas 616 a V. Place 267 Behrens v. McKenzie 176 Belcher v. Grubb 624 Belknap v. Gibbens 543 Bell V. J)ouglass 252 V. Hall 113 V. Jones 639 V. KenchMck 647 Bellows & Peck's Case 425 Benedict v. Bray 115, 150 Bennett v. Avant 48, 108 V. Brown 121 a, 152, 176, 308 Benson v. Berry 267 V. Campbell 27 a V. McCoy 726 Bentley v. (ioodwin 225 V. Shrieve 509 a Benton i'. Lindell V. Roberts Bergh v. Jayne Bernal v. Hovious Berry v. Anderson V. Harris V. Spear Bethune v. Gibson Bibb V. Smith Bickerstaff v. Patterson Bickford v. Rice Bicknell v. Hill V. Trickey Bigelow V. Andress V. Willson Biggs V. Blue V. Kouns Bildersee v. Aden Bimeler v. Dawson Bingham v. Lamping V. Rushing V. Smith Birdsong v. McLaren Bishop V. Fennerty V. Holcombe V. Warner V. Young Bissell V. Huntington V. Nooney V. Strong Bivens v. Harper Black V. Paul V. Scanlon V. Zacharie Blackburn v. Davidson Blackwood v. Jones Blair V. Cantey V. Rhodes Blaisdell v. Ladd Blake v. Camp V. Hatch V. Kiml)all V. Shaw V. Williams Blakley v. Bird Blanchard o. Cole V. Coolidge V. (iroussett V. Vargas Blaney v. Findley Hiatchley v. Adair Bleven v. Freer Bliss, Tn re V. Heasty V. Smith V. Stevens Section 678 321 94, 106 248 696 671 219 221, 255, 263 599 207 704 359, 373 258 225, 453, 454 222 90 453 313 a, 319, 323, 341 h 85 482 545 619, 620 91, 137 101, 112 608 192 651 365, 379, 395, 427 265 465 494 614, 653 104 a 30 550 112 251, 506 550, 658 a 276, 453, 543 416 256 374 222, 426 597 96 684 246 28 653 120 339 392 87, 100 6, 162 a, 437, 449 a 451 «, 659 374 XXX INDEX TO CASES CITED. Blodgett r. Gardiner Bloom V. Burdick Blyler v. Kline Boardinan v. Bickiord V. Gushing V. Roe Bodct V. Nibourel 139 Bogart V. Phelps 185, 185 a Boggs V. Bindskoff 65 V. Hargrave 89 a Bond V. Greenwald 322 6 V. Padellbrd 349, 351, 353, 367, 3G8 V. Patterson 90 V. Ward 189, 199, 250. 253 a Bonner v. Brown 112, 127, 144, 414 V. Martin 658/ Boon V. Maul 732, 735 Boone v. Savage 95 Boone County v. Keck 516 Booth V. Kees 113, 185 Borden v. Fitch 87 a Borders v. ]\[urphy 5 Born V. Staaden 630, 579 Bosbyshell v. Emanuel 93, 102 Boston, C, & M. R. R. Co. v. Gil- more 252 a Boston & Maine Railroad v. Oliver 685 Boston Type Co. ». Mortimer 685 BostwickV Beach 460, 658 b 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 Bowley V. Angire 381 Bowman v. Stark 219 Boyd V. Bayless 643 V. Boyd 121 V. Buckingham 107, 331 V. C. & O. Canal Co. 469 V. King 205 V. INIartin 163 Boyes v. Coppinger 401 Boyle V. Franklin Fire Ins. Co. 549 Boynton v. 'Warren 290, 300 Brackett v. Blake 667 Bradbury v. Taylor 372 Bradford v. Giliaspie 249 V. McLellan 253 a V. Mills 478 Bradley v. Arnold 248 V. Obear 246 Section Section 664, 665 Bradley ?'. Richmond 516 85, 87 b Brainard v. Burton 212 332 V. Bu.-hiu'll 265 51, 60 V. Sliannon 634 685 Braley v. Byrnes 185 a 54S, 646, 647 V. Clark 340 t?. Riley 244 a 11. French 240, 291 Branch Kank v. Poe 472, 557, 667, 668 Branch of State Bank v. Morris 148 a Brandon v. Allen 173 a Brandon Iron Co. v. Gleason 262 Jirainion v. Noble 708 Branson v. Shinn 402 Brash v. Wiclarsky 90 Brashear v. West 251, 453 Brauser v. New England F. I. Co. 478 Bray v. McChiry 6, 88 V. Wallingford 616 V. Wheeler 694 Braynard v. Burpee 697 Brazier v. Chappell 528 Breading v. Sicgworth . 662, 707 Brealsford v. Meade 561 Bretney v. Jones 144 Bridge v. Bracken 85 V. Ford 85 V. Wyman 367 Bridges y. North 683,659 V. Perry 292 V. Williams 94 Brigden v. Gill 454, 463, 487, 489, 541 Briggs V. Block 487, 514, 625 V. French 289 V. Gleason 203 V. Mason 210 b, 363 V. Strange 252 a V. Taylor 292, 301, 307 Brigham v. Avery 245 Brinegar v. Griffin 34 Briscoe v. Bank 516 a Briit V. Bradshaw 653 Britton V. Preston 688 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 626 V. Stone 225 Bi'otherton v. Anderson 636 V. Thomson 334 Brower v. Smith 244 c Brown, Matter of 100 V. Ainsworth 418 V. Ashbough 61 V. Atwell 381 V. Brown 689 a LNDEX TO CASES CITED. XXXI Section Brown v. Cook 349 V. Crockett 396 V. Davis 204, 210, 463 V. Dudley V. Foster 707, 710 525 V. Harris 413 V. Heath 246, 480 V. Hincliman 99 V. McCluskey 87, 108 V. Massey V. Kichardson 899 81 V. Richmond 304 V. Ridgway V. Scott 420 254 V. Silsby 659, 660, 664 I'. Slate 583, 659 V. Somerville 700 708, 711 V. Warren 683, 684 I'. Whiteford 140 V. Williams 221 Brownell v. Carnley 245 V. Manchester 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. Pettengill 208, 346, 363 Brumgard v. Anderson 408 Brundred v. Del Hoyo 65 Bryan v. Dunseth 67 V. Lashley 453 V. Smith 85 Bryant v. Fussel 81 V. Osgood 208, 256, 258 a Buchanan v. Alexander 512 Buck i". IngersoU 35 Buckley v. Lowry 87 Buckman v. Buckman 275 Buckmaster v. Smith 246 Buddington v. Stewart 248 Butfham v. Racine 516 ButHiigton V. Gerrish 246 Buffum V. Seaver 425 Buford V. Wclborn 650 Bulfincli V. Wnu'henbach 568 Bulkley V. Eckert 493, 512 Bullard v. Hicks 660 V. Randall 611 Bullitt V. Winston 216 Bump V. Betts 729, 732 Bunker v. Gilmore 607, 717 Bunn V. Pritchard 113 Burcalow v. Trump 67 Burch V. Watts 336 a, 419 Burgess v. Clark 52 V. Stitt 92 Section Burke v. Whitcomb 551, 578 Burkhardt v. McClellan 221, 236, 263 Burlingame v. Bell 251, 267, 270, 453 Burlock V. Taylor 605 Burnap v. Campbell 711 Burnham v. Beal 487 V. Folsom 618 V. Fond du Lac 516 V. Hopkinson 457 Burnell v. Weld 570 Burnside v. McKinley 517, 526 Burrell v. Letson 251, 482, 506, 625 Burrill v. Jewett 65 Burroughs v. Wright 267 Burrows v. Glover 604 V. Lehndorff 173, 730 a V. Miller 61 V. Stoddard 282, 367 Bursley v. Hamilton 392 Burt V. Parish 112, 144 V. Perkins 389 Burton v. District Township 658 c, 660, 713 V. Knapp 170 a V. Smith 176 V. Wilkinson 186, 200 V. Wynne 588 Bushel V. Commonwealth Ins. Co. 79 Buswell r. Davis 289 Butler V. Borders 196 Butterfield v. Baker 246 V. Clemence 297 V. Converse 384 Byars v. Griffin 609 Byrd v. Hopkins 416 c. Cadvvalader v. Hartley Cadwell v. Colgate Cady V. Comey Cahill V. Bigt'low Cahoon v. Ellis V. Morgan Caignett v. Gilbaud Cain ?). Mather Cairo & St. L. R. R. Co lenberg Calahan v. Babcock Caldwell v. Arnold V. Coates V. Stewart V. Townsend Calhoun v. Cozzens V. ^V^are Calkins v. Lockwood Callagan v. Pocasset Man 579, 588 87, 106, 319 501 595, 612 655 451 b 566 36 . V. Kil- 604, 659 245 196 461, 545 452 460 11, 415 437 222 , Co. 594 xxxu INDEX TO CASES CITED. Callalian v. Ilallowill Callender v. Duncan V. Fuibisli Camberford v. Hall Section 263, 472 140 539, 643 116, 143, 262, 273, 697 Camden v. AlltMi 684 a Cameron v. Stollenwerck 707 Caminack *'. Floyd 526 Cannnann 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. Roger 263 V. Wilson 111 Canada v. Southwiek 294, 389 Canal Co. v. Insurance Co. 527 Candee v. Skinner 665 V. Webster 665 Canfield v. McLaughlin 837 Cannon v. Logan 102 V. McManus 406, 409 Caperton v. MeCorkle 429 Cardany v. N. E. Furniture Co. 659 CargiU V. Webb 379, 380 Cariand v. Cunningham 14 Carleton v. Washington Ins. Co. 5, 449 Carlton v. Davis 199 Carpenter v. Pridgen 102 V. Snell 373, 374 V. Stevenson 178 V. Turrell 323 b Carr v. Coopwood 414 V. Farley 352, 388 V. Waugh 604 Carrington v. Didier 81 V. Smith 292 e, 360 Carrique v. Sidebottom 635, 650 Carroll v. Finiey 655 V. ]\LcDonogh 701 Carson v. Allen 688 V. Carson 246 Carter v. Champion 239 V. Gregory 278, 279 Carver v. Braintree Man. Co. 12 Cary v. Gregg 224 Case V. Moure 460, 658 a Casey v. Davis 514, 717 Cason V. Cason 89 b Castle ('. Bader 225 Catlin V. Lowrey ' 395 Cayce v. Ragsdale 409 Center i'. McQuesten 525 Central Bank v. Prentice 539 Central Plank Kuad Co. v. Sam- raons 465 a Section Chadbourne v. Sumner 204, 210, 256, 271, 290 Chaine v. Wilson 67 Chamberlain v. Beller 189, 253 a V. Faris 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. Williams 465 Chariton County v. Moberly 57 Chase v. Elkins 246 V. Foster 658 e V. llaughton 688 V. Manhardt 665 Chatzel v. Bolton 670 Chea.lle v. Riddle 92 Cheairs v. Slaten 706 Chealy V. Brewer 493, 512 Cheatham v. Carrington 81 V. Trotter 652 Cheddick v. Marsh 25 Chemung Bank v. Judson 87 a Chenault v. Cliapron 409 Cheongvvo v. Jones 700, 708 Cherry v. Hooper 550 Cheshire Nat. Bank v. Jewett 249 Childress v. Dickins 556, 652 V. Fowler 312, 318 Childs V. Barrows 214, 220 V. Digby 484 t). Ham 209, 296 Chipman, Matter of 60, 400 Chittenden v. Hobbs 37 a Chouteau v. Sherman 72 Chrisman v. Rogers 324 Christie v. Unwin 85 Christmas v. Biddle 480 Church V. Knox 669 V. Simpson 659 Churchill V. Abraham 154, 166, 174 V. FuUiam 136 Cilley V. Jenness 294, 300 Citizens' Bank v. Payne 451 b City Bank v. INIerrit 402 Claliin v. Iowa City 470 Claiiton V. Laird 132, 416 Clapp V. Bell 228, 413 I'. Davis 616 b V. Hancock Bank 464, 557 V. Rojiers 453 Clapp V. Thomas Clark, Matter of V. Arnold V. Averill V. Boggs V. Brewer V. Brown V. Bryan r. Chapman V. Cilley V. Clark V. Clough r. Foxcroft V. Gaylord V. Gibson Section 195, 244 a 445, 448 46 480 510 518 464 317, 322, 448 470 525 493, 546 347 283, 288 388, 389 520 V. Great Barrington 512, 703 V. Holliday 5 V. King 550, 575 V. Lvnch 246 V. Mobile School Com'rs 516 V. Morse 94, 369 V. Powell 665 V. Pratt 61 V. Roberts 87 V. Viles 481 V. Ward 64 V. AVilson 24, 415 Clarke v. Farnum 457 V. Gary 204 V. Meixsell 696 Clay V. Neilson 207 V. Scott 263 Clement v. Clement 551 Clements v. Cassilly 336 Cleneay v. Junction R. R. Co. 588, 674 a Cleveland v. Clap 634, 656 V. Rogers 85 Cleverly v. Braekett 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, 6G0 Coburn v. Aiisart 494, 515 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 \SES CITED. XXXUl Section Coddington v. Gilbert 244 c Coe V. Rocha 659 V. Wilson 246 Cofield V. Tilton 282 a Cogswell V. INlason 242 Cohen v. Manoo 87, 91 V. St. Louis P. I. Co. 665 Colby V. Coales 494, 511 Colcord V. Daggett 586, 589 Cole V. Dugger 216 V. Parker 188 V. Wooster 262, 508 Coleman's Appeal 5, 10 Coleman v. Bean 323 Collins V. Brigham 517 V. Dulfy 422 V. Friend 460 V. Mitchell 342 V. Nichols 406 V. Perkins 194 a, 203 V. Smith 291, 374 Colson V. W^ilson 244 a Colt V. Ives 528 Colvin V. Rich 576, 579, 607, 717 Colwell V. Bank of Steubenville 446 V. Richards 353, 374 Commercial Bank v. Neally 498 V. Ullman 102, 107 Commissioners v. Fox 588 V. Thompson 85, 89 b Commonwealth v. Manley 247 V. Morse 349, 367 V. Stockton 196 Comstock V. Farnum 650, 575, 652 V. Paie 641 Conant v. Bicknell 251, 506 Congdon v. Cooper 298 Conklin v. Goldsmith 132 V. Harris 66, 144, 148 Conley v. Chilcote 674 a Conn V. Caldwell 290 Connelly v. Harrison 525 Connoley v. Cheeseborough 583, 659 Conrad v. McGee 54, 87, 88, 90, 102 Conway v. Armington 496 V. Butcher 224 V. Cutting 610 Cook V. Boyd 314 V. Dillon . 490 V. Field 708, 710, 716, 722 V. Hopper 185 a V. Jenkins 91 V. Walthall 541, 545 Cooke V. State Nat. Bank 80 Cooper V. Hill 170 V. McClnn 706 V. Mowry 362 V. Newman 195, 256 XXXIV INDEX TO CASES CITED. Cooper V. Peek V. Reeves r. Rovuolds V. Smith V. Sumlorland Cope V. U. M. IM. & P. Co. Copeland V. Weld Corbjn V. Bollinan Corey v. Powers Cornwall v. Gould Cornwell v. Ilungate Corwiii V. Merritt Coston V. Paige Cota V. Misliow Cotton V. Huey Cottrell V. Varnum Courier r. Cleghorn Courtney v. Carr Cousins V. Brashear Covert V. Nelson Cowles V. Coe Cowperthwaite v. Sheffield Cox V. Miliier V. Peinhardt V. Robinson V. Thomas Crabb v. Jones Grain r. Gould Crane v. Freese V. Lewis Crary v. Barber Crawford v. Clute V. Foste V. Slade Cray ton v. Clarke Creagh v. Delane Creps V. Baird Crisman v. Matthews V. Swisher Crizer v. Gorrin Crocker v. Pierce 15. Radcliffe Section 840 415 5, 87, 448 91, 449 85, 89 b 95, 418 481 510, 648 464 35 697, 715 85, 87 b 98, 408 689 a 187 557 87 a 187 a, 235 119 575, 7U8 523 611 234 33 158, 170, 175, 738 85 620, 624 517, 633, 682 «, 687 251, 505, 506 19 112 701, 705 336 701, 705 576, 607, 608, 717 111 89 a 339 205 205 222, 234 221, 222, 255, 263, 422 Crosby r. Allyn 236, 237, 241 V. Hetlierington 473 Cross V. Brown 370, 878, 385, 395 V. Haldeman 576 V. McMaken 107 V. Phelps 185, 185 a V. Richardson 19, 96 Grossman v. Grossman 644, 651, 655 Crouch V. Grouch Crowell V. Johnson Crowninshield v. Strobel Croxall V. Hutchings Crozier v. Shants Cruyt V. Phillips 113 448 221, 231, 255, 268 57, 108 607 319 Culbertson v. Cabeen Culver V. Parish Cunuiiings v. Garvin Cummins v. Gray Curiae v. Packard Curie V. St. Louis P. I. Co Curling v. Hyde Curry v. Glass V. Woodward Curtis V. Norris V. Raymond V. Settle Gushing v. I>aird Cushman v. Haynes Cutler V. Baker Cutter V. Perkins Cutters V. Baker Section 101, 102, 788 589 499 333 314 a 614 497 225 451 c, 565 a 617, 533 589 107 654 625 711 552, 680 a 617 D. Daily v. Jordan Dakin v. Hudson Daley v. Cunningham Dame v. Fales Damon v. Bryant Danaher v. Prentiss Dandridge v. Stevens Danlorth v. Garter 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 V. Kuhn V. Owens Davis V. Commonwealth V. Connelly V. Davis V. Drew V. Edwards V. Eppinger V. Garret V. Ham V. Knapp V. Marshall V. Marston V. Miller 844, V. Oaklord 667 85 509, 626 187 b 185 a 680 a, 658 e 107 33, 136, 428 478 428 589 452 470 605 284 5 224 480, 667 422, 425 261, 608 219 470 261 27 162 85, 87 a 268, 498, 669 502 101, 108 276 244 661,662 658 115 490 853, 872, 878 650 INDEX TO CASES CITED. XXXV Section Davis V. Pawlette 583, 588, 659 V. Stone 200 V. Taylor 527 Dawkins v. Gault 654 Dawson v. Holcombe 251, 505 V. Jones 717 V. Moons 216 Day V. Bennett 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. Oppenheimer 94 a Dear v. Brannon 341 Deaver v. Keith 548 DeBlanc v. Webb 636 Debuys v. Yerbey 81 Decker v. Bryant 100 Decoster v. Livermore 511 Dehler v. Held 342 Delacroix v. Hart 452 Delano v. Kennedy 318 Deloath v. Jones 245 Denegre v. Milne 30 Denham v. Pogue 588 Dennie v. Hart 674 d Denning v. Corwin 85 V. Smith 87 6 Dennis v. Twichell 609 Dennison v. Nigh 247 Derinistoun v. N. Y. C & S. F Co. 251 Denny v. Ward 287 V. Warren 256 , 276 V. WiUard 204, 222, 294, 357, 369, 389 Denson v. Sledge 188 Denton r. Livingston 206 Derr v. Lubey 516 Desha v. Baker 205, 224, 451 6, 696, 712 Despatch Line v. Bellamy Man. Co. 453, 485, 548 Deupree v. Eisenach 106 Devall V. Taylor 101 DevoU V. Brownell 610 Devries v. Buchanan 654 Dew V. Bank of Alabama 696 Dewar v. Spence 214 Dewey v. Fi'ld 294, 389, 392 Dewing v. Wentworth 511 De Wolfj;. Habhett 246 V. Dearborn 245 Deyo V. Jennison 193 Dezell V. Od.-ll 379, 392 ])ick V. Bail.y 292 d Dickenson v. Cowley 101 Dickerson v. Simms Dickey v. Fox Dickinson v. Benhara V. McGraw V. Strong Dickison v. Palmer Dickman v. Williams Dickson v. Morgan Dider v. Courtney Didier v. Galloway Diefendorf y. Oliver Dierolf v. Winterfield Dillenback v. Jerome Dillon V. Watkins Dirlam v. Wenger Divine v. Harvie Dix V. Cobb Dixon V. Hill Dobbins v. Hyde y. O. & A. Rai Dodd V. Brott Dodge V. Griswold Doggett V. St. Louis M Co. Dole V. Boutwell Dolsen v. Brown Donham v. Wild Donnell v. Jones 154 Donnelly v. O'Connor Dore V. Dawson Dorman v. Kane Dorr V. Clark V. Kershaw Dorsey v. Kyle V. Pierce Douglass V. Neil Dove V. Martin Dow V. Smith V. Whitman Downer v. Brackett V. Curtis V. Shaw V. ToplifF Downing v. Phillips Doyle V. Gray Drake v. Hager Drane v. McGavock Drayton v. Merritt Drew V. Alfred Bank V. Decpiindre V. Livermore Driggs V. Harrington Driscoll V. Hoyt Drown v. Smith Drummondj). Stewart Dryden v. Adams Dubois V. Dubois Section 25 586, 589 75 166 465, 481 508 245, 246 628 409 115 601 318 349, 367 132 715 516 a 603, 608 225 528, 706 Iroad Co. 516 a 607 225 . & F. Ins. 663 710 525 361, 362 , 157, 174, 175, 726, 738, 742 a 659 575 294 339 321, 322, 323 65 216 691, 697 133, 134 89 b, 136 437 a 425 552 5 549 415 594, 689 a 103 506, 509 388 184 a 108, 111, 441 381, 392 335 a 461. 659 394 173 a 517 251, 505 XXXVl INDEX TO CASES CITED. Section 465 b 310 a 611 711 256, 292 a, 357 30o 98 [. Co. 251,509 319 405 557 159, 176, 177 263 Dudley v. Falkner V. Goodrich Duncan i'. Berlin V. Ware Dunklee v. Falcs Dunlap V. Iluntinj^ Dunlevy v. Schartz Dunlop V. Paterson F. Dunn V. Crocker V. Myres Dunnegan v. Byers Dunning v. Humphrey Durant v. Johnson Durrossett's Adni'r v. Hale 440 Dwight V. Bank of Michigan 526 Dwinel v. Stone 652 Dyer v. Flint 106 V. McHenry 687 E. Ealer v. McAllister 124 Earl V. Spooner 181 Earthman r. Jones 5, 87 a Eastman v. Avery 349 V. Eveleth 305 Easton v. Goodwin 339 Eaton V. Badger 5, 85, 449 V. Bartscherer 170 V. Wells 77 a Ebner v. Bradford 9 Eddy V. Heath's Garnishees 548 Edgerley v. Sanborn 671 Edmonson v. DeKalb County 452, 466 « ~ ■ 696 672 490 686 105 318 436 162 319 516 487 186, 208 248, 369 561, 583, 659 42 10, 420 251 87 a 134 n 517, 674 420 98, 408 481, 654, 672 Edrington v. Allsbrooks Edson V. Sprout V. Trask Edwards v. Delaplaine V. Flatboat Blacksmith V. Prather V. Toomer V. Turner Egan V. Lumsden Egerton v. Third Municipality Eichelberger v. Murdock Ela V. Shepard Eldridge v. Lancy Ellicott V. Smith Ellington V. Moore Elliott V. Jackson V. Newby V. Peirsol V. Stephens Ellis V. Goodnow Ellison V. Mounts V. Tallon V. Tuttle Section Ellsworth V. Moore 119 Emanuel v. Smith 460 Embree v. llanna 700 Embury ?;. Conner 85 Emerson v. Fox 231 V. Partridge 581, 588 V. Smith 244 a V. Upton 217, 219 V. Wallace 454 a Emery v. Davis 490 V. Lawrence 612 Emmett ik Yeigh 105 Enders v. Richards 74 V. Steamer Henry Clay 112, English V. Wall Enos V. Brown V. Tuttle Ensworth v. King Erie v. Knapp Erskine v. Sangston V. Staley Erwin v. Com. & R. R. Bank 144, 414 91 351, 353 589, 599, 655 221, 239 516 654 224, 453, 455 165, 588 5, 460, 697 246 490 583, 669 112, 144, 331, 414 700 V. Heath Esdon V. Colburn Estabrook v. Earle Estill V. Goodloe Evans v. King V. Matlack V. Saul Eveleth v. Little Everdell v. Sheboygan, &c., R Co. Everett v. Herrin Excelsior Fork Co. v. Lukens Ezelle V. Simpson R. 56 219 465 a 485 405 205 F. 283 Fairbanks v. Stanley Fairchild v. Lampson Fairfield v. Baldwin 276, 282 V. Madison Man. Co. V. Paine 212, 218, 219 Falconer v. Freeman Falls V. Weissinger Fanning v. First Nat. Bank Farley v. Farior Farmer v. Simpson Farmers' Bank v. Beaston 251, 509 V. Day r. Gettinger 91 Farmers and Mechanics' Bank v. Little , 286 572 , 285 112 220, 265 225 341 480 105 708 506, ,511 231 , 687 ' 424 INDEX TO CASES CITED, XX XV 11 Section Farmers & Mechanics' Nat. Bank V. King 491 a Farmers and Merchants' Bank v. Franklin Bank 685 Farnham v. Cram 393, 395 V. Gihnan 3fil Farrington v. Edgerly 292 a Farrow v. Barker 63 FarwL'll V. Howai-d 461 Faulkner, In re 87 , 100 V. Waters 551 Faulks V. Heard 658 a Faxon v. Mansfield 689 a Fay V. Sears 578, 639, 659 V. Smith 558 Featlierston v. Compton 692, 696 Ft-azle V. Simpson 729 Felker v. Emerson 311, 426 Fellows D. Brown 10 V. Dickens 141 V. Duncan 545 V. Miller 139 Felton V. Wadsworth 285 Ferguson v. Suiiih 95 Ferris i\ Carlton 98, 401 V. Ferris 10 Fessenden v. Hill 111 Fettyplace v. Dutch 222, 292 e Field V. Adreon 48, 59 a V. Crawford 487 V. Jones 509 a V. Livermore 74 V Milburn 230 V. Watkins 631, 686 Fife V. Clarke 317 Fifield V. Wood 658 e V. Wooster 290 Firebaugh v. Hall 85 V. Stone 672 First V. Miller 251, 505 Fir.st Baptist Church v. Hyde 682 h First National Bank v. Perry 539 First National Bank v. Davenport & St. P. R. R. Co. 465 a Fish V. Field .548 Fibber v. Bartlett 388, 3^9 V. Consequa 14, 415 V. Taylor 418 V. Vose 425 Fisk V. Herrick 568 V. Weston 530 Fitch, Matter of 99 V. Rogers 290 V. Ross 317, 422 V. Waite 42, 48, 221, 2(13, 4H\ Fitchntt V. Dolbee 497, 499 Fithian v. Brooks 6')9 V. N. Y. & E. R. R. Co. 478, 6->4 Section Fitzgerald, Matter of 49, 60 V. Blake 190 V. Caldwell 665, 700, 701, 704 Fitzhugh V. Hellen 237 Fitzsimmons v. Marks 5 Flake v. Day 93 Flanagan v. Gilchrist 167 V. Wood 292 a, 292 b Flash V. Paul 696, 6'J7 Fleming v. Bailey 178 V. Burge 144 Fletcher v. Fletcher 481 Flower v. Griffith 95 V. Parker 709 Floyd V. Blake 10 V. Hamilton 157, 175 Folsom V. Haskell 488 Force v. Gower 5 Ford V. Babcock 85 V. Dyer 196 V. Hurd 116, 696, 711 V. Wilson 439 V. Woodward 90, 116, 696 Forepaugh v. Appold 604 Forsyth v. Warren 444. 449 a Fortman v. Rottier 729, 732 Fortune v. State Bank 583, 659 V. St. Louis 516 Foss V. Stewart 195 Foster v. Drvfus 400 V. Dudley 548, 618, 620 V. Glazener 85 V. Hall 58 V. Higginbotham 89 6 V. Jones 620, 697, 706 V. Potter 244 V. Sinkler 678 V. Sweeney 740 V. Walker 576, 579, 583, 607, 659 V. White 576, 579, 607, 717 Foster's Case 425 Foulks V. Pegg 222, 291 Fowble «. Walker 212 Fowler v. Bishop 388 V. Jenkins 89 b V. McClelland 496 V. Pittsburg, F. W., & C. R. R. Co. 465 a V. Williamson 607 Fowles V. Pindar 378 Fox V. Hoyt 89 b V. Reed 688 a Foyles v. Kelso 437 n Frankel v. Stern 121, 178 Franklin v. Ward 622 Franklin Bank u. Batchelder 425 XXXVlll INDEX TO CASES CITED. Section Fian'c'in Rnnk r. Small 344 Franklin Fire Ins. Co. v. West 224, 549, 669, 671 Frarv v. Dak in 85 Frazier i'. Willoox 223, 697 Frt>e V. Hukill 107 Freeborn v. Glazer 415, 420 Freeman v. Creech 282 V. Grist 263 V. Howe 251 V. Thompson 437 a, 440, 446, 448 Freidenrich v. Moore 658 e Frellson v. Green 224 French v. Rogers 572 V. Stanley 202, 204, 257, 294, 310 Frere v. Ferret 107 Fridenburg v. Pierson 262, 273 Friedlander v. Myers 104 Frost V. Brisbin 65 V. Cook 132 V. Kellogg 248, 388 V. Mott 225 V. Patrick 659 V. White 323 Frotbingham v. Haley 551 Fuller V. Bryan 39 V. Holden 294, 389 V. Jewett 481 V. O'Brien 550 Fullerton v. Mack 200 Fulton, The Robert 251 V. Heaton 185 Fulweiler v. Hughes 557, 615 Funkhouser v. How 586, 589, 706 G. Gaddis V. Lord 173, 744 Gaftney v. Bradford 588 Gager v. Watson 623 Gaines v. Beirne 460 Gail her v. Ballew 509 Galbraith v. Davis 246 Gale V. Ward 256 Galena &C. U. R. R. Co . V. Men- zies 604 Gallagher v. Cogswell 141 Gallego V. Gallego 701 Galloway, Matter of 82 Gallup V. Josselyn 254 Gardner v. Hu^t 194 Garland v. Harrington 611 612 Gannon v. Barringer 112, 144 414 Garner v. Biirlesun 101 102 V. White 98 Garnet v. Wimp (Jarretson r. Zacharie Garrett v. Tinnen (iarrott v. Jallray (xary v. McCown Gasherie v. Apjde (Ja^*(Juet V. Johnson (iass V. Williams Gassett V. Grout Gates V. Bushnell V. Flint V. Gates V. Kerby Gay V. Caldwell V. Southworth Section 185 170 312 629 208 75 246 331, 841 b 502 221, 263 256 291 706 216, 218 244 a Gee V. Alabama L. I. & T. Co. 420 V. Cumming 678 V. Warwick 451 a, 496, 645, 678 Geer v. Chapel 545 Genin v. Tompkins 400 Georgia Ins. & Tr. Co. v. Oliver 665 Gerrish v. Sweetser 610 Gery v. Ehrgood 480 Getchell v. Chase 463, 548 Gibbons v. Bressler 87 a Gibbs V. Chase 198, 291 Gibson v. Cook 611 V. Jenney 195 V. McLaughlin 44 V. Wilson 205 (biddings v. Coleman 523, 639, 656 Gies V. Bechtner 549 Gilbert v. Crandall 349, 362 V. Hollinger 193 Gildersleeve v. Caraway 713 Gile V. Devens 193 Gill V. Downs 414, 420 GiUaspie v. Clark 31"2 Gilman v. Hill 199 V. Stetson 219 Gilmer v. Wier 183 Gilmore v. McNeil 373, 376, 386 Ginsberg v. Pohl 196 b, 265 Girard Fire Ins. Co. v. Field 549, 669 Gianton v. Griggs 721 (ilassell V. Thomas 681 Gleason v. Briggs 311 V. Gage 673 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 V. Hapgood 453, 537 V. Perkins 222 Godden v. Pierson 457 Goebel V. Stevenson 322 b, 339 Gold V. Ilousatonic Railroad Co. 478 INDEX TO CASES CITED. XXXIX Goldsmith v. Picard V. Stetson GoU V. Hinton Goode V. Holcombe V. Longmire Goodman v. Allen Goodrich v. Church Goore v. McDaniel Gordon v. Coolidge V. GafFey Section 743, 745 184 244, 248 658/ 246, 255 a 338 268 224, 229 658, 659 10 V. Jenney 256, 291, 292 c, 371 V. Johnston Gore V. Clisby Gorman v. Swaggerty Goss V. Gowing Gouch V. Tolman Gould V. Meyer Gover v. Barnes Gower V. Stevens Grace v. Maxfield Gracey v. Coates Graighle v. Notnagle Graham ». Bradbury V. Burckhalter V. Moore V. Ruff Grand Gulf R. R. & B Conger Granite Bank v. Treat Grant v. Deuel V. Shaw Graves v. Cole V. Cooper V. Strozier V. Walker Badgett Bennett V. Briscoe V. Henby V. MacLean V. McNeal V. Perkins Grayson v Veeche Green v. Doughty V. F. & C. Bank V. Gillett V. Haskell V. Lanier V. Nelson V. Shaver Greene v. Bcckwith V. Pyne V. Tripp Greenleaf w. Mumford V. Perrin Greentree v. Rosen stock Greenvault v. F. & M. Bank Greenwood v. Hector Gray v V 331 465, 481 452 54, 102 652 658 a, 695 403 292 a, 292 b 545 662 253 11, 111, 409 141 548 107 Co. V. 131 85 158 483, 517, 533, 551 113 658 b 27 656 684 12 11 624 339 85 831 543 599 474 581, 604 85 341 c 688 422 60, 67 66, 208 106, 696 225, 231 463, 541 717 113 619 Section Greer v. Powell 588 V. Rowley 470, 516 Gregg V. Nilson 451 a V. Thompson 448 Gregory v. Higgins 585, 588 Greiner v. Prendergast 10 Gridley v. Harraden 618 Griffith V. Robinson 120 Grignon v. Astor 85, 86 Grigsley v. Love 263 Grissom v. Reynolds 711 Griswold, In re 262, 273 V. Plumb 378 V. Sharpe 10, 420 Groat V. Gilles{)ie 177 Groorae v. Lewis 509 a Grosvener v. F. & M. Bank 481 V. Gold 222 Grove v. Harvey 134 Grover v. Buck 103 Guay V. Andrews 339 Guier v. O'Daniel 62 Guild V. Holbrook 481, 551 Guile V. McNanny 101 Guilhon v. Lindo 34 Gunn V. Howell 658 a, 694, 697, 706, 710, 711 Gutraan v. Virginia Iron Co. 103 H. Haber v. Nassitts 70 a Hacker v. Stevens 453 Hackettstown Bank v. Mitchell 65 a Hadley v. Peabody 667 Haffey v. Miller 667 H alley v. Patterson 107 Hagan v. Lucas 267 Hagedon v. Bank of Wisconsin 509 a Hnggart v. Morgan 65 Haggerty v. Ward 449 Hagood V. Hunter 101 Haight V. Bergh 81 Hair v. Lowe 658 e Haizlette v. Lake 75 a Halbert v. McCuUoch 339 V. Stinson 624 Haldeman v. H. & C. R. R. Co. 221, 222 223. 527 Hale V. Chandler 227, 275 V. Cummings 228 V. Duncan 251, 294 V. Huntley 250 Haley v. Reid 244 Hall V. Brazelton 113 V. Howd 85 V. Magee 541, 545, 594 xl INDEX TO CASES CITED. Hall V. Page V. Stryker r. Wa I bridge V. Williams Halpin r. liarringer Halsey v. Whitney Hamilton r. Bryant V. Knight Ilammett v. Morris Ilananer v. Casey Hancock v. Colyer I'. Henderson Handly v. Pfister Handy v. Brong r. Dobbin Hanmer v. Wilsey Hanna v. Bry i\ Lauring V. Loring Hannahs i'. Felt Hanness v. Smith Hansen v. Butler Hansford v. Perrin Hanson v. Davis V. Dow Harbison v. INIcCartney Hardaway v. Semmes Hardesty v. Campbell Hardin v. Lee Harding v. Harding Hardy v. Colby V. Hunt V. Trabue Section 689 99, 2i>5 262, 291 87 a, 454 b 489 244 S2Sb 110 459 221 481, 551, 667 236 223 10 244 185 c 609, 626 697 10 221, 224 311 502 335, 338 572 184 a 229, 267 229 403 448 276 609 630 101 Harley v. Charleston S. P. Co. 80 Harlow V. Bet'ktle 445 Harmon v. Birchard 696, 711, 715 V. Moore 252 a, 381, 388 Harney v. Ellis 683, 659 Harper v. Bell 317 V. Keys 170 V. Miller 212 Harrell v. Whitman 457, 541, 545, 547 Harriman lu Gray 2;t7 Harrington v. People 85, 87 6, 89 b Harris v. Aiken 638 V. Dennie 251 V. Grodner 440 V. Hanson 196 V. Phoenix Ins. Co. 458, 517 V. S. & K. R. R. Co. 674 b r. 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 Section Hart V. Anthony 474 V. Dahlgreen '657 i; Kanady 124 Hartford v. Jackson 245 Hartford Quarry Co. v. Pendleton 316 a Hartshorne v. Henderson 645 a llartle v. Long 498 Hartley v. Tapley 612 Harvey v. Grymes 224 V. Tyler 85, 87 a Haselton v. Monroe 700 Haskell V. Haskell 490 Hassie v. G. I. W. U. Congrega- tion 457, 545 Hatch V. Bay ley 245 a V. Lincoln 245 a Hathaway v. Davis 27, 418 V. Larrabee 237 V. Russell561,563, 684, 688 Hatry v. Shuman 406, 409 Haughton v. Eustis 425 Haven v. Low 245, 539 V. Snow 218. 220 V. Wentworth 403, 541 Havis r. Taylor 52,741,742 V. Trapp 404 Hawes V. Langton 639, 649, 652 V. Waltham 568, 572 Hawkins v. Albright 406 Hawley v. Atherton 661 V. Delmas 101 Hawthorn v. St. Louis 616 Hayden v. Sample 159, 176, 739 Hayes v. Josephi 323 a Haynes, Ex parte 87, 99, 100, 106 V. Gates 604, 691 V. Small 204, 208 V. Tenney 377 a Hays V. Gorby 119 Haywood v. Collins 85, 437 a, 448 V. Hardie 196 c V. McCrory 96, 437 a V. Russell 440, 443 a Hazard v. Agricultural Bank 79 V. Franklin 667 V. Jordan 17,-26 Hazelrigg v. Donaldson 323 Hazeltine v. Page 695 Hazen v. Emerson 648, 678 Head v. Merrill 472 Heard v. Fairbanks 249, 2.58 Hearn v. Crutcher 490, 508 V. Foster 625 Hearne v. Keath 28 Heath V. Lent 176, 179 Hebel v. Amazon Ins. Co. 451 ft Heffernan v. Grymes 697 INDEX TO CASES CITED. Xli Section Heidenbach v. Scliland 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 Hennessey v. Farrell 667 Henrie v. Sweasey 95, 449 a Henry v. Mitchell 237 Heiisiey v. Morgan 422 Hepp V. Glover 245 Hergraan v. Dettlebach 249 Herndon v. Forney 166 Hernstein r. Matthewson 10 Herring v. Johnson 662 Hervey v. Champion 224 Hess V. Shorb 498 Hesseltine v. Stockwell 199 Hewes V. Parkman 195 Hewitt V. Wheeler 546 HeA'neman v. Dannenberg 225 Hibbard v. Clark 684 a Hibbs V. Blair 150 Hicks 0. Chapman 502 V. Gleason 453 , 542, 701 Higgins V. Whitney 185 c Hill V. Beach 508 V. Bond 415 V. Chatfield 10 V. Child 263 V. Cunningham 212, 213, 215, 415 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 Hinckley v. Bridgham 377 a V. Williams 454 h, 487 Hincs V. Kimball 53 Hiiikle V. Ciirrin 673, 678 Hinsdill V. Satford 588 Hisler v. Carr 124 Hitchcock V. p]gerton 481 V. Watson 659, 663 Hitt V. Lacy 620, 702, 706 Hoag V. Hoag 5-13 Hoar V. Marshall 501 Hobson V. Emporium R. E. & M. Co. 449 n Hotrkaday v. Sallee 247 Hodges V. (irahara 451 b, 697 Hodskin v. Cox 373 Hodsoa V. McConnell 604 Section Hoffman v. Fitzwilliam 451 a V. Simon 658 f Holbrook v. Baker 245, 539 V. Hvde 199 V. Waters 247, 501 Holcomb V. Foxworth 166 Holland v. Adair 448 Holliday v. Sterling 732 a Hollingshead, In re 96 Hollister v. Goodale 256 Holloway v. Brinkley 34 Hollv V. Huggeford 246 Holman v. Fisher 422, 496 Holmes v. Barclay 10 V. Remsen 706 Holston Man. Co. v. Lea 95 Holt V. Allaway 87 a V. Burbank 291, 370. 379 Holton V. South Pacific Railroad Co. _ 653 Homan v. Brinckerhoff 125 Home Mutual Ins. Co. v. Gamble 674 a, 676, 711 Hooper v. Hills 523 Hooton V. Gamage 672 a Hoover v. Gibson 27 Hopkins v. Nichols 101, 102 V. Ray 481 V. Suttles 108 Hopkirk v. Bridges 5 Horn V. Bayard 158, 175, 180 V. Cole 253 h Home V. Mitchell 118, 121 h Horner v. Doe 85 V. Harrison 168 Hoshaw V. Gullett 332 V. Hoshaw 171 Hoskins v. Johnson 561 Hotchkiss V. McVickar 291 Houghton V. Ault 67 Housemans v. Heilbron 460 Houston I'. Belcher 116, 124, 127 V. Nowland G05 r. Walcott 697,711 V. Wolcott 630 a Hovey v. Crane 650 V. Wait 218, 219 Plow V. Field 465 Howard v. Card 539 V. Clark 263 a V. Crawford 673 V. Daniels 237 V. Farr 244 a V. Oppenheimer 120 V. Smith 374 V. Whittemore 363 V. Williams 195 Howe V. Ould 588 xlii INDEX TO CASES CITED. Section Howe V. Starkweather 2U I. V. Stewart 244 b Section Ilowell r. Freeman 620 Ifflehart v. Moore 588 V. Kiiifr.sbury 94 Illinois C. R. R. Co. v. Cobb 618 Howes I'. Spieer 190, 381 V. Weaver 454 llowland v. Spencer 481 Ilsley V. Nichols 200 Hoy V. Brown 25 Ingalls V. Baker 244/; V. Eaton 269 V. Dennett 686 Hoyt V. Robinson 661 Ingrahani v. Phillips 425 V. Swift 457, 463, 541, 647 Innian v. AUport 86, 112 a Hubbard v. Williams 588 V. Strattan 323 Hubbardston L. Co. v. Covert 90 b \ Tnslee v. Lane 245 Hubbell V. Root 297 n Insurance Co. of Penn. v. Phosnix Hueheson r. Ross 115, 123 Ins. Co. 604 Hudson V. Daily 420 Irish V. Wright 10 V. Hunt 539, 561 Irvin V. Howard 96, 101, 102, 147, HuflFr. Hutchinson 313 J, 318 323 V. Mills 589, 620 Irvine v. Lumbermen's Bank 700 Hugg V. Booth 547, 548 V. Scobee 216 Hughes V. Brooks 158, 176 Irwin V. P. & C. R. R. Co. 665 V. Kelly 246 Isaacks v. Edwards 405 V. Lapice 216 Isham V. Downer 233 V. Martin 103 V. Ketchum 262, 273 V. Monty 674 a Ives V. Bartholomew 732, 733 V. Stinnett 103 V. Hamlin 381 Hull V. Blake 708 V. Vanscoyoc 647 Humphrey v. Barns 715 Ivy V. Barnhartt 729 V. Warren 635 Humphreys v. Cobb 305, 373, 374 V. Matthews 34 J. Hunt V. Coon 461, 659 V. Field 225 Jackson v. Bank U. S. 491 V. Johnson 5 V. Burke 108, 108 a V. N orris 12, 19 V. Holloway 430 V. Stevens 251, 509 V. Perry 67 V. Wickliffe 442 V. Shepard 87 b Hunter v. Case 465 V. Sliipman 658 a, 682 V. Ladd 148 V. Stanley 133, 135 , 148, 415 Huntington v. Blaisdell 256, 291 V. Wals worth 81 V. Risdon 594 V. Warwick 141 Huntley v. Stone 487, 514 Jackson's Ex'r v. Lloyd 665 Huntress v. Burbank 704 Jacobs V. Remsen 225 Hurd, Matter of 81 Jacoby v. Gogell 14, 104 V. Jarvis 69 Jaeger v. Stoelting 341a Hurlburt v. Hicks 606 James v. Dowell 415 Hurlb,ut V. Seeley 65 V. Fellowes 678 Husbands v. Jones 229 Jameson v. Paddock 375, 388 Hussey v. Thornton 246 V. Ware 373 Hutchins v. Brown 216 Janney v. Spedden 5 V. Evans 588 Jaquett v. Palmer 608 V. Hawley 463, 541, 578 Jasper County v. Chenault 148 V. Sprague 523 Jetlery v. Wooley 25 V. Watts 614 Jeffries v. Harvie 205 Hutchinson v. Eddy 715 Jenney v. Delesdernier 361 V. Lamb 10 V. Rodman 381 V. Parkhurst 372 Jennings v. Joiner 166 a Hyde v. Hig^ins 19 V. Summers 550 Hynson v. Taylor 10 Jewel V. Howe 101 INDEX TO CASES CITED. xliii Jewett V. Bacon V. Dockray V. Torrey Johan V. Rufener Johns V. Church V. Field Johnson v. Buell I'. Carry V. Day V. Delbridge V. Edson V. Farmers' Bank V. Fleetwood V. Gage V. Gorhara Griffith Hale Section 560, 674 e, 680 347 381 674 a 197, 391, 392 717 112, 144, 414 674 « 214, 216, 220 662 228, 362, 413 176 247 Jones V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. Howard V. Johnson V. King V. Laughlin V. McCutchings V. Moss V. Pace V. Short V. Thayer V. Weatherwax Anderson Mina. Ins. Co. Bank of N. Liberties Bradner Buzzard Bvrd Gilbert Gorham Holland Howell Huntington Jones Kirksey Lake Leake M. & A. Eailroad Co. N. Y. & E. R. R. Co. 448 453 455 102 684 « 5 567, 570 74 658/- 207 612 34 610 327 a 136 489 491 a 246 20 414 892, 394 511 83 a 659 454 251, 331, 506 744 V. V. V. V. Jordan v V Judah V. V. Norris O'Donnell Peasley Pope R.-ed Tracy Webster Winchester Wood . Gallup . Hazard Duncan Judd 185 fl 106 339 452, 478, 625 481 399 831 112 85 682 95 474 701 291, 294 36 414 608 Section Judah V. Stephenson 5 Judson V. Lewis 196 Junction R. R. Co. v. Cleneay 575, 588 K. Kahn V. Herman 130 Kaiser v. Richardson 8416 Kaley v. Abbot 602 Kane v. McCown 448, 448 a V. Pilcher 331 Kanouse v. Dormedy 320 Kapp V. Teel 588 Karnes v. Pritchard 461 Kearney v. Nixon 640 Keel V. Ogden 633, 655 Keep V. Sanderson 654 eilh V. Harris 624 Kellogg V. Freeman 460 V. Miller 115 Kelly V. Archer 115, 124 V. Babcock 487 V. Beauchamp 174 V. Bowman 634 , 639, 649, 656 V. Dexter 851 353, 383 u. Donnelly 95 V. Oilman 1§7 6 V. Lane 225 V. Roberts 487, 525 Kelso V. Blackburn 87 6 Keinpe's Lessee v. Kennedy 87 a Kendall v. Brown 317, 318 V. Morse 292 Kennedy v. Aldridge 614 V. Baillie 62 V. Brent 191, 453 V. Dillon 87 V. H. L. & S. Society 470 V. Morrison 103 V. Raguet 422 Kennon v. Evans 101, 107 V. Ficklin 263 Kergin v. Dawson 539, 658, 654 Kerr v. Mount 185 6 Kesler v. St. John 599 Ketchum V. Ketchura 34 Kettle V. Harvey 541, 553 Keyser v. Mitchell 454 6 Kidd V. Shepherd 620 Kidder v. Packard 564 Kidderlin v. Myer 452 Kicller V. Ehler 587 , 588, 589, 591 K'llYv. Old Colony, &c. R. R Co. 195, 244 h Kilburn v. Woodworth 5 Killey v. Scannell 253 a xliv INDEX TO CASES CITED. Section Killsa V. Lcrniond 706 Kimball i'. Donald (511 i: Gav 58S V. IMant 585, 588, 6!)7 ('. Weiliiifiton 275 Kiinbroujih r. Davis 607, 717 Kineaid v. Neall 262, 27o King 0. Bucks 1% a, 207 V. IIarriiin;ton 448 V. Montgomery 782 V. Moore ' 608 V Murphy 60!) V. Vance 5, 437, 557, 588, 708 Kingman v. Perkins 611 Kingsland v. Cowman 100 V. Wor.shain 42 Kingsley v. Missouri Fire Co. 570 Kinney v. Heald 92 Kinsey v. Wallace 726, 727 Kirk V. Morris 331, 332, 333 a, 3:'.5 Kirkman v. Hamilton 538 V. Patton 112 Kirksey v. Bates 207, 327 t'. Dubose 185 V. Jones 157, 182, 727, 748 Kitchen v. Reinsky 215 Kittredge v. Emerson 425 V. Sumner 246 * V. Warren 425 Klemm v. Dewes 414 Klenk V. Schwalm 95, 102 Klinck V. Kelly 222 Knabb v. Drake 244 a, 480 Knap V. Sprague 269, 292 a, 351, 356 Knapp V. Levanway 686, 642 Knight V. Bowley 481 V. Gorham 528 V. Nelson 189 Knox V. Protection Ins. Co. 469, 549, 669 V. Schepler 571 Kritzer v. Smith 144, 409 Kruse v. Wilson 87 a, 91 Kugk-r V. Shreve 64 Kuhn V. Graves 221 Kyle w. Connelly 186 Labeaume v. Sweeney 343 Lackey v. Seibert 221, 224 Lackland v. Garesche 4 a, 454 b Ladd V. Gale 494 V. Hill 248 V. Jacobs 700, 710 V. Noith 291 Laighton v. Lord 285, 881 Section Lamb v. Belden 228 V. Day 208 V. Franklin Man. Co. 652, 658 V. Stone 458, 640 Lambard v. Pike 237 Lanibden v. Bowie 403 Lambert v. Craig 278 Lambeth v. Turubull 245 Lamkin v. Phillips 528, 604, 607, 680. 717 Lamprey v. Leavitt 381 Lane v. Fellows 108 V. Felt 461, 481 V. Jackson 256 V. Nowell 482 Lang V. Waring 89 a Langdon v. Conklin 418 V. Lockett 509 a Langley v. Berry 601 Lannan v. Smith 612 Large v. Moore 607. 607 a Larimer v. Kelly 67, 222 Larkin v. Wilson 478 Lasley v. SislofF 654 Lathrop v. Blake 210, 267, 291, 371 V. Cook 389, 391 V. Snyder 95 Law] in V. Clay 442 Lawrence i\ Bank 225 V. Burnham 248 V. Featherston 142 V. Hagerman 175, 726, 782, 745 V. Jones 400 V. Lane 706 V. Rice 299, 348 V. Smith 474, 476, 658 e V. Yeatman 127 Lawton V. Kiel 27 l^ayman v. Beam 215 Lea V. Maxwell 214 «. Vail 147 Leach v. Cook 53 V. Thomas 124 Learned v. Bryant 389 i;, Vandenburgh 221, 256 Lecesne v. Cottin 813 Lee V. Palmer 697 V. Peters 107 V. Stanley 67 Leefe v. Walker 548 Legro V. Staples 528 Leigh ;;. Smith 460, 658 b Leland v. Sabin 602 Lenox v. Howland 13, 400 Leonard v. New Bedford Savings Bank 711 V. Speidel 325 INDEX TO CASES CITED. xlv Leonard v. Stout Lessing v. Vertrees Levi V. Darling Levy V. Levy V. McDowell V. Millnian Lewis V. Buck V. Butler V. Dubose V. Kennedy V. hynmn V. Orpheus V. Paine V. Prenatt V. Sheifield V. Smith V. AVhittemore Libbey v. Hodgdon Libby V. Cushman Lick V. Madden Lieber v. St. Louis Assoc'n Lightner v. Steinagel Lincoln v. Beebe V. Tower V. White Lindau v. Arnold Lindell v. Benton Lindner v. Aaron Lindsay v. Larned Lindsley v. Malone Little V. Hale V. Owen V. Sinnett Littlefield i\ Hodge V. Smith Littlejohn v. Wilcox Livengood v. Shaw Livermore v. Rhodes Livingston v. Smith Lock V. Johnson Locke V. Tippets Locket V. Child Lockett V. Neutville Lockhart v. Johnson V. Woods Lodge V. Lodge Loftin V. Shackleford Lonierson v. Hoffman V. Huffman Loomis V. Green Lord V. Allen V. Gaddis Loring V. Folgcr Lorman v. Plucnix Ins, Lorrain v. Higgins Loubat V. Kipp Louderman v. Wilson Section 60 646 120 34, 95 426 33, 108 251 108, 115 545 77 246 258 570 629 a 661 541, 546 199 79 35 260 a A. & M. 620 506, 508 324 5 235 697 424 133, 415 732 406, 420 588 665 89 6 588 609 158, 176 103, 409 75 185, 253, 426 480, 630 620, 674 a 566 134 c 658 6 173, 742 a, 743 279 689 697, 711 461, 548, 659 199 422 418 423, 711 Co. 659 100 221, 422 550 Section Love V. Fairfield 126 V. Harper 263 V. Kidwell 167, 169 V. Voorhies 317, 322 a V. Young 108 Lovejoy v. Albree 474, 696 V. Hutcbins 295, 297, 309 V. Lee _ 481, 506, 508 Lovelady v. Harkins 416 Lovell V. Sabin 297, 299 Lovely v. Caldwell 614 Lovier v. Gilpin 185, 397, 405, 729 Lowe V. Derrick 147 Lo^yry v. Cady 381 V. Clements 460 V. Lumbermen's Bank 708 V. Stevens 388 V. Stowe 91, 112, 127, 147, 415 V. Walker 291^ 371 Loyless v. Hodges 451 a, 453 Lucas V. Godwin 207 Lucky V. Miller 126 Ludden v. Leavitt 291, 349, 351, 367, 371 Ludlow V. Bingham V. Ramsey huffv. Pope Lummis v. Boon Lundie v. Bradford Lupton V. Cutter Luton V. Hoehn Lyford v. Demerritt Lyle V. Barker V. Foreman Lyman v. Cartwright V. Dow r. Lyman V. Orr V. Parker V. Wood Lynch v. Crary Lynd v. Picket Lyndon v. Gorbam Lyon V. Rood V. San ford V. Yates Lytle V. Lytle 581, 588 103 611 229 517, 541, 545 481, 544 625 706 a 245, 539 62 706 266 381 665 643 543 221, 224 a 195 568 256 224, 239 185 c 275 Mc. McAllister v. Brooks 578, 708, 710, 718 V. Penn. Ins. Co. 478 McBrayer v. Dillard 244 a McBride v. Farmers' Bank 222 V. Floyd 224, 262, 273 McBurnie v. Overstreet 255 a xlvi INDEX TO CASES CITED. Section McCaffrey v. ]\Ioore ()20 MfCarn v. Rivers 285 MiCarthy's Appeal 244 a McCartney v. Branch Bank 91 McCarty v. Enilen 670, 620, 702 ]McClanahan v. Brack 111, 123, 416 McClellan v. Young 516 INIcClerkin v. Sutton 11 ]\IcCluny V. Jackson 275 ]\IcCobb V. Tyler 263 McCoid L\ Beatty 607 McCollem v. White 63, 101 McComb V. Reed 304 McCoonibe v. Dunch 81 McCoruiac v. Hancock 491 n McCoy V. Williams 517, 683 McCraw v. Welch 102 McCreary v. Topper 498 McCuUoch V. Foster 87, 108 McCullough V. Grishobber 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 McDougal V. Hennepin County 516 McDowell V. Crook 653 McEachin v. Reid 459 McEvoy V. Lane 653 McFadden v. O'Donnell 701 McFarland v. Farmer 246 McGavock v. Bell 87 a McGehee v. Walke 641 McGlinchy v. Winchell 541 a McGuire v. Pitts 627 McHaney v. Cawthorn 108 Mcllvaine v. Lancaster 454 b, 487 Mclntyre v. White 126 McKay v. Harrower 222, 299. 306 McKean v. Turner 648, 549 McKee V. Anderson 655 McKellar v. Couch 726 McKenzie v. Buchan 123, 143 V. Noble 509 a McKeon v. McDermott 701 McLaughlin v. Davis 158 V. Swann 490 McMechan v. Grilling 241 McMeekin v. State 516 a McMenomy v. Ferrers 6 1 1 McMillan v. Dana 317, 319, 321, 323 V. Richards 585 McMinn v. Hall 550, 556 V. Whelan 225 McNamara v. Ellis 106 McNeil V. Bean 311 McNeill V. Glass 245 Section McNeill V. Roache 585 McPhail r. Hyatt 711 Mil'herson v. Snowden 4 a, 509 a McQueen v. Middletown Man. Co. 79 McRae v. Austin 321 V. McLean 327, 331 McReady v. Rogers 175, 426 McRee V. Brown 659 McReynoldsw. Neal 87, 113 McWhorter v. Beavers 89 a M. Mace V. Heald 667 IMack V. Parks 252 Mackey v. Hodgson 665 Macomber r. Doane 611 V. Wright 560 Maduel v. Mousseaux 651, 657 Magee v. Callan 315 Magne v. Seymour 294 Maher v. Brown 523 Mahnke v. Damon 170 a Maine F. & M. Ins. Co. v. Weeks 463, 481, 541 Malcom v. Spoor 200 Maley v. Barrett 185 a Malley v. Altman 452 Malone v. Lindley 67 V. Samuel 216 Mamlock v. White 185 Manchester v. Burns 480 V. McKee 5 V. Smith 594 Mandel v. Peet 39, 94, 107, 120, 134, 399 Mandeville r. Welch 611 Mankin v. Chandler 5, 706 Manley v. Headlev 94 Mann v. Buford ' 464, 515, 659 Manny v. Adams 245 Mansard v. Daley 526 Mansfield v. N. E. Express Co. 636 a Manton v. Poole 95 Mantz V. Hendley 87, 93, 108, 131 Manufacturers' Bank v. Osgood 684 Maples V. Tunis 87, 88, 90 Marion v. Faxon 248 Maris v. Schermerhorn 211 Marks V. Reinberg 653 a Marlin v. Kirksey 614 Marnine v. Murphy 139 Marsh V. Backus 196 V. Davis 599, 717 Marshall v. Alley 95 ». Betner 730, 744, 745 V. G. G. R. R. & B. Co. 550 INDEX TO CASES CITED. xlvii Section Marshall v. ^Marshall 291 V. Town 431 V. White 10, 36 Marston v. Carr 481 V. Carter 247 Martin v. Branch Bank 79 V. Dryden 221, 224, 229, 436 V. Foreman 453 V. Michael 225 V. Mobile & O. R. R. Co. 80 V. Potter 605 V. Thompson 116, 139 Marty, In re 13 Martz V. Detroit, F. & M. Ins. Co. 551 Marvel v. Houston 496, 545 a Marvin v. Hawley 506 Mason v. Ambler 594 V. Anderson 207, 216 V. Briggs 376 V. McCampbell 653 V. Noonan 703 a V. Watts 294 Mass. Nat. Bank w. Bullock 457 Massey v. Scott 5, 437 V. Walker 420 Matheny v. Galloway 697 Matheson v. Rutledge 527 Mathews v. Park 490 Mathis V. Clark 679 Matthews w. Ansley 187,417 V. Houghton 708 V. Sands 696 Mattingly v. Boyd 453, 665, 683, 700 Maude v. Rodes 5 Maxfield v. Scott 372 Maxwell V. McBrayer 10 V. McGee 246 V. Stewart 5, 222 May V. Baker 457, 547 V. Courtnay 419 V. Gamble 134 6 Mayer v. Chattahoochie Nat. Bank 525 Mayfield v. Cotton 742 a Mayhew v. Davis 684 a V. Dudley 98, 99 V. Scott 517 Meacham v. McCorbitt 481, 551, 659, 660, 667 Meade v. Smith 196 Means r. Osgood 219 Mears v. Winslow 221, 263 Mechanics and Traders' Bk. v. Dakin 225 Mechanics and Traders' Bank v. Hudge 512 Meeker v. Sanders 651 V. Wilson 223 Section Megee v. Beirne 5 Meggs V. Shaffer 405, 406 Meldrum v. Snow 246 Melton 0. Troutman 743 Melville V. Brown 225, 248 Memphis v. Laski 516 Memphis R. R. Co. v. Wilcox 414 Mense v. Osbern 409 Merchants' M. I. Co. v. Brower 244 Meriam v. Rundlett 708 Merrick v. Hutt 222 Merrill V. Curtis 201, 368 V. Low 104 V. Sawyer 258 Mersereau v. Norton 248 Merwin v. Chicago 516 Messner v. Hutchins 133 V. Lewis 133, 200, 208 Metcalfv. Clark 81, 193 V. Steele 460 V. Young 174 Metzner v. Graham 251 Meuley v. Zeigler 207, 237 Michael v. Thomas 168 Middlebrook v. Ames 49, 399 Miere v. Brush 144 Millar v. Babcock 448 Millaudon v. Foucher 108 Mill-Dam Foundery v. Hovey 12 Milledgeville Man. Co. v. Rives 287 Miller v. Adsit 367 V. Baker 193 V. Bannister 185 a V. Brinkerhoff 88 V. Chandler 418 V. Clark 285, 381 V. Desha 339 V. Dungan 6 V. Hooe 474 V. Hubbard 611 V. McLain 706 V. McMillan 207 V. Munson 107 a V. Richardson 464, 489, 572 V. Shacklelord 212, 213 V. Sharp 5 V. Spreeher 420 Milliken v. Loring 717 Millison V. Fisk 494 Mills V. Block 225 V. Camp 258 V. Find lay 25 V. Martin 85 V. Stewart 706, 720 Mims V. Parker 550, 583, 659 V. West 588 Minard v. Lawler 624 Minchin v. Moore 639 xlviii INDEX TO CASES CITED. Section Mineral Point R. R. Co. v. Keep 79, 80 Mines v. Pyle 694 Minga v. Zollicoffor 10 Mitchell V. Byine 245, 535 V. Gooch 384 V. Ilinnian 349, 367 V. ISIattingly 173, 732 V. Merrill 334 V. Shook 11 V. Skinner 418 V. United States 68 V. Watson 459 a Mobile V. Rowland 516 Mobile & Ohio K. R. Co. v, Wbit-_ ney 674 a Mobley v. Lonbat 570 Mock V. King 496, 498 Monroe v. Bishop 27 V. Cutter 321 Montague v. Gaddis 70 a Monte AUegre, The 89 a Monterey v. McKee 27 Montgomery v. Tilley 69 Moon V. Hawks 254 V. Story 342 Mooney v. Kavanaugh 288 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. INIauck 113 V. Murdock 245 V. Pillow 481 V. Spackinan 706 V. Stainton 452 V. Stanley 440 V. Thayer 422 V. Westervelt 292 V. Withenburg 158, 251 Moores c. White 81 Morange v. Edwards 323 Moreland v. Ruffin 216 Morey v. Sheltus 545 Morgan v. Avery 43, 47, 400 V. Dyer 85 V. Furst 339, 340 V. Ide 246 Section Morgan v. Johnson 95 V. Neville 474, 706, 711 v. Woods 441 Morrill v. Brown 481 V. Keyes 199 Morris v. Hall 333 a V. Ludlam 723 V. Penniman 506 V. Price 176 V. Trustees 144, 213 Morrison v. Alphin 317 V. Blodgett 381, 387 V. Fake 99, 101, 102 V. Lovejoy 100 V. N. B. Institution 713 V. Ream 95 Morrow v. Weed 89 b Morse v. Bet ton 299 V. Hodsden 327 a V. Holt 482 V. Hurd 198, 256, 392 V. Marshall 659 V. Presby 85, 89 b V. Smith 210, 271 Morton v. Pearman 27 V. Webb 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 Moyer v. Lobengeir 711 Muir V. Schenck 608 Mulhall V. Quinn 613 Munroe v. Cocke 104 V. Luke 241 Murphy v. Baldwin 67 V. Crew 429 V. Higginbottora 89 a Murray v. Cone 93, 131 V. Eldridge 262 V. Gibson 224 V. Shearer 323 Murrell v. Johnson 509, 650 Muskett V. Drummond 85 Myatt V. Lockhart n /-, 525, 654 T . . 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. Urieh 711 INDEX TO CASES CITED. xlix Nailor «. French Nancarrow v. Young Napper v. Noland Nash V. Brophy V. Farrington V. Mallory Sect'on 63 326 108 674 e 195, 244 a 187 b Nashville Bank v. Ragsdale 244 Nason v. Esten 193 Nathan v. Giles 223, 533, 700 National Bank v. Titsworth 695 Naylor v. Dennie 256 Ne'ally v. Ambrose 640 V. Judkins 184 a Near v. Mitchell 700 Neilson v. Scott 650 Nelson v. Conner 509 a V. Murch 105 a Nesbitt V. Campbell 683 V. Ware 645 Nesmith v. Drum 628 Neuer t?. O'Fallon 487,614 Nevins v. Rockingham M. F. I. Co. 669 Newby v. Hill 614 Newell V. Adams 678 V. Blair 528, 650 V. Ferris 671 New England M. I. Co. v. Chand- ler 490 New England Screw Co. v. Bliven 703 b 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 302 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 V. Schofield 464, 557 V. Valentine 244 b, 291 Nickerson v. Chase 483, 688 Noble V. Holmes 185 a, 225 V. Merrill 658 b V. Smith 605 V. Thompson Oil Co. . 527, 706, 710 a Noien V. Crook 533 Nolle V. Thompson 162 a, 729 Norcross v. Benton 684 Norris v. Bridgham 393 V. Bin-goyne 6(17 V. Hall 666, 708 V. Watson 249 Section North V. McDonald 54 a Northam v. Cartwright 605, 608 Northern Central R. Co. v. Rider 451 b Northwestern Ins. Co. v. Atkins 549 Norton v. Kearney 185 a V. People 367 r. Piscataqualns. Co. 604,609 V. Winter 622 Norvell v. Porter 451 d Noyes v. Brown 614 V. Butler 87 a Nugent V. Opdyke C07, 630 Nutter V. Connett 221, 263 Nye V. Liscomb 474 o. Oakey v. M. & A. Railroad Co. 653 Oakley v. Aspinwall 5 O'Brien v. Daniel 96 V. Liddell 624, 627 V. Norris 245 O'Connor v. Blake 228 V. O'Connor 697 Odiorne v. Colley 256, 267, 269, 291, 353, 356 Odom V. Shackleford 36 Oestrich v. Greenbaum 196 Oeters v. Aehle 300 O'Farrell v. Stockman 116 OtFutt i;. Edwards 52, 158, 175, 176, 408 Ogilvie V. Washburn 37 a O'Grady 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 676, 696, 711, 717 V. Scrivener 221, 222, 229, 267 Olin V. Figeroux 706 Oliver Jordan, The 251 Oliver v. Atkinson 659 V. C. & A. R. R. Co. 472 V, Gwin 318 W.Lake 245,517 V. Smith 511 V. Wilson 48, 52, 147 Olney v. Shepherd 204 O'Neal V. Owens 124 V. Wilson 89 a O'Neil V. N. Y. & S. P. Mining Co. in Orear v. Clough 112 INDEX TO CASES CITED. Section Section OritMital Rank v. T. Ins. Co. 704 Parmole v. McLaughlin 246 Ormoiid r. ^loye 588, 59-i Parineiitcr v. Childs 658 e Onnslioc r. Davis 656 Parmer v. Ballard 697, 713 Ornisbv v. Anson 638 Parsons v. JMcCjavock 616 Orr V. Mcl>ri(le 251, 508 V. Paine 441 a Orton V. Nooiian 400 V. Root 686 Osborn r. SchifllT 123, 409 V. Stockbridge 102 OsboriR' V. Jordan 667 V. Strong 394 Ospjood r. Holyoke 184 « Paschail v. Whitsctt 424 Otis V. Fovd 653 Patrick v. INlontader 275 V. Ilitihcock 85 Patten v. Wilson 604 V. Jones 185 c Patterson v. Harland 639 Overton v. Hill 506 V. IVIcLaughlin 81 Owen V. Dixon 225 V. Perry 671 V. Estes 517 Patton V. Gates 599 r. Jordan 85 V. Smith 541 Owens V. Johns 91 a, 120 Paul V. Hussey 89 6 I'. Starr 117, 185 V. Johnson 674 c Owinps r. Norwood 222 V. Paul 463 641, 548 Oy.v r. Geyer Wyatt's Ailiii'r i\ Rambo AVybiaiits v. Rice Wyman v. Ilidiborn V. Mitchell V. Stewart Y. Yale V. Saunders Yarboroujih v. Thomps Yarbroutrli v. Hudson Yates V. Bond Yelverton i\ Burton Yerb}' v. Lackland Yocum V. Barnes V. White Yongue v. Linton Section Section 550 Young V. Broadbcnt 282 094, 711 V. Cooper 36 a 588 V. Grcgorie 732 559 V. Grey 140, 144, 414 85 V. Nelson 54 a 658 a V. Pickens 341 c V. Ross 475 V. AValker 271 292 a, 292 b, 358, 359 V. Young 251, 499, 625 194 a Yourt V. Hopkins 222 9,589,717 743 89 a z. 244 a, 261 696 Zeiorenhagen v. Doe 221, 224,447 328, 336 Zerega V. Benoist 95 711 Zinn V Dzialynskl 95 535 Zurcher v. Magee 506, 658 a THE LAW OF SUITS BY ATTACHMENT. THE LAAV OF SUITS BY ATTACHMENT. CHAPTER I. ORIGIN, NATURE, AND OBJECTS OF THE RE:MEDY BY ATTACHMENT. § 1. THE'prelirainary attachment of a debtor's propert}^, for the eventual satisfaction of the demand of a creditor, is unquestion- ably a proceeding of great antiquity. 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 Ro- man law, be capable of exact verification, need not now detain us.^ 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 bj^ word of mouth ; and it is directed that the mayor and aldermen of the city, and their successors, do declare by the Recorder whether the things under dispute be a custom or not, before any of the King's justices, without inquest by jury, even thougli the citizens themselves be parties to the matter at 1 The following passage in Adam's (si fraiidationis causa latitaret, Cic. Qnint. Roman Antiquities, by Wilson, p. 194, is 19), lie was summoned (evocalatur) tliree 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 f(n-ce any person to court from herald, or by letters, or by the edict of his own house, because a man's house thepra;tor; and if he still did not appear was esteemed his sanctuary {tntissimum [xe non sisteret), the prosecutor was put refiiijium et receiiUicuhuii). But if any iu possession of his efl'ects." lurked at home to elude a prosecution 1 [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 Starke}', Recorder of London, as early as 22 Edward IV. to be : " That if a plaint be affiimed in London, be- fore, &c., against any person, and it be returned niJiil, if the plaintiff will surmise that another person within the city is a debtor to the defendant in any sum, he shall have garnishment against 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 Avas, it is believed, first treated of in an orderly manner by Mr. Bohun, in a Avork entitled " Privi- legia Londini : or the Rights, Liberties, Privileges, LaAvs, and Customs of the City of London ; " of the third edition of which a copy, printed in 1723, is before me ; in Avhich 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. II.) do begin Avith those of William I., yet it must not be understood as if any of the city rights, liberties, or privileges Avere originally owing to the grants of that jirince. For 'tis evident, the said Cit}' 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 I." § 3. This custom, notwithstanding its local and limited charac- ter, Avas doubtless knoAvn to our ancestors, Avhen they sought a new home 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 uuAvritten law, and presenting a subject of much interest to legislatures and their constituents, as Avell as to the legal profession and their clients. . Our circumstances as a 1 Locke on Foreign Attachment, XVI. [2] CHAP. I.] ORIGIN, NATURE, 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 enhirgement 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 dis- covered 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 certainly 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 by 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, only under ?i fieri facias ; under the custom, it is subjected to a preliminary 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 farther act on his part ; under- the custom, he cannot have execution of the property or debt in the garnishee's hands, without giving pledges to refund to the de- fendant the amount paid by the garnishee, if the defendant, within a year and a day, appear and disprove the debt for which the at- tachment is obtained. Li these and other respects the proceeding under the custom has an individuality entirely foreign to the common law. Its pe- culiar features have in the main been preserved in its more en- [3] § 5 ORIGIN, NATUKE, ETC. OF ATTACHMENT. [CHAP. I. larged 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 i)roperty in the garnishee's hands ; the necessity for the presentation of special grounds for resort to it; and the requirement of a cautionary bond, to be executed by the j^laintiff and sureties, to indemnify the defendant against damage resulting from the attachment. Still the remedy is, with us, regarded and treated as sui fjeneris, 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 system of remedy b}' attachment, than that it is — except in some States where it is authorized in chancery — a special remedy at laiv, 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 remed}^ by attachment is not full and complete, a court of equity has no power to pass an}^ 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 Avhatever.^ 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 an- swer the plaintiff's 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 by the attachment, and was, therefore, discontinued ; but though the defendant is in fact never summoned, still the record of the proceedings in the Mayor's court must contain the 1 McPlierson v. Snowden, 19 Mary- brough, 125 ; Megee v. Beirne, 89 Penn. land, 197 ; Lackland v. Garesche, 66 Mis- State, 50 ; lirav v. MuClury, 55 Missouri, •souri, 267. 128. 2 Mankin i'. Chandler, 2 Brocken- ^ Ashley on Attacliment, 11. • [4] CHAP. I.] ORIGIN, NATURE, ETC. OF ATTACHMENT. § 5 return of nihil, or it will be erroneous and void.i ^\\ i\^q notice, therefore, which the defendant there has of the proceeding, is derived through the attachment of his propert}' ; and herein is the leading difference between the London proceeding and ours. With us, the writ of attachment is always accompanied or pre- 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 perso7iam, 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, un- affected 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 personal judgment against him ; ^ and the cause proceeds to final judgment, but affects only what is attached ;3 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. of tlie defendant, and no service of 2 King V. Vance, 46 Indiana, 246. process on him, the case becomes, in its 3 Kilburn v. Woodwortli, 5 Jolmson, essential nature, a proceeding in rnn, the 37; Lincoln v. Tower, 2 McLean, 473; only effect of which is to subject the "Westervelt v. Lewis, Ibid, oil; Phelps property attaclied to the payment of V. Holker, 1 Dallas, 261 ; Chamberlain v. the demand which the court may find to Faris, 1 Missouri, 517; Massey r. Scott, be due to the plaintiff. 49 Ibid. 278 ; Downer v. Siiaw, 2 Foster, " That such is the nature of this pro- 277 ; Ma.xwell v. Stewart, 22 Wallace, ceeding in this latter class of cases, is 77 ; Miller v. Dungan, 36 New Jersey clearly evinced by two well established Law, 21 ; Coleman's Appeal, 75 Penn. propositions : first, the judgment of the State, 441 ; Fitzsimmons v. Marks, 66 court, though in form a personal ju;. Gogell, 5 Sergeant & ^ i\.ter v. Butler, 1 Leigli, 285. Rawle, 400. * Weaver v. Puryear, 11 Alabama, 2 Wilson V. Wilson, 8 Gill, 192. See 941. Warwick v. Chase, 2:j Maryland, 154. ^Hazard v. Jordan, 12 Alabama, 180. 2 [17] § 19 CAUSE OF ACTION. [CHAP. II. tliat an attacliment would lie to recover damages for a breach of covenant.' § 10. In Louisiana, under a statute which authorized an attach- ment to issue " whenever a petition shall be presented foi» the re- covery 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 the 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 him up, to recover the value of the slave, and of his services during his detention, and damages for expenses incurred in demanding him, and for counsel fees ; the court holding that the retention of the slave was a violation of the contract of 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 at- tached 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 1 W'oolfolk V. Cage, Walker, 300. * Hyde v. Higgins, 15 Louisiana An- 2 Hunt V. Korris, 4 Martin, 517. nual, 1. 3 Crane v. Lewis, 4 Louisiana Annual, 820. [18] CHAP. II.] CAUSE OF ACTION. § 22 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." ^ § 20. In Arkansas, where an attachment was allowed when any person "is indebted," it was held that the term "indebted" is sj'nonymous with oiving, and that attachment might be main- tained upon an unliquidated as well as a liquidated demand, arising 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 injury 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 1 Turner v. Collins, 1 Martin, x. s. ' Jones i\ Buzzard, 2 Arkansas, 415. 369. * liausniau o. Smith, 2 Indiana, 374. ■^ Cross V. Richardson, 2 Martin, n. s. 323. [19] § 24 CAUSE OF ACTION. [CHAP. 11. an affidavit being made that the defendant is indebted to the plaintiff, and specifying, as near as may be, the amonnt of such indebtedness, over and above all legal set-offs, and that tlie 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, and upon the common counts in indebitatus as-nwipsit, 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 Avhether 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. Without 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 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 1 Roelofson v. Hatch, 3 Michigan, 277. [20] CHAP. II.] CAUSE OF ACTION. § 25 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 vo3'age. 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 stand- ard are the damages, which the plaintiffs have sustained, on ac- count 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 wdiich 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." ^ § 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 sum 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 p)laintiff 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 certaint}' 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 jDroceeded on by attachment.^ In the same State, it was decided that attach- 1 Clark ;;. Wilson, 3 Wasliington C. C. 2 Jeffery v. Wooley, 5 Halsted, 123; 560. tSed contra, Redwood v. Consequa, 2 Barber v. Robeson, 3 Green, 17. Browne, 62. [21] § 27 CAUSE OF ACTION. [CHAP. II. nient 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 cove- nant.^ § 26. In Alabama, under that clause of the statute above re- ferred to, which authorized an attachment where the defendant was indebted to the plaintiff, the following case arose. The plain- tiff alleged that the defendant contracted with him to take cer- tain iron upon a vessel of the defendant's 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 board ; 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- 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 com- prehensive 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 recoveiy 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 1 Cheddick i'. Marsh, 1 Zabriskie, 463; subsequent statute, which is noticed in Hoy r. Brown, 1 Harrison, 157; I^icker- §27. son (;. Simms, Coxe, rj9. See State v. ^ Hazard r. Jordan, 12 Alabama, 180. Beall, 3 Harris & McHenry, 347. « Van Wyck v. Bauer, 9 Abbott Pract. - Mills V. Findlay, 14 Georgia, 230. n. s. 142. It was, however, held otherwise, under a ^ Barnes v. Buck, 1 Lansing, 268. [22] CHAP. II.] CAUSE OF ACTION. § 27 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 plahitiffs, was considered to authorize an attacliment ; the breach comphxined of being that the corn was not sound, and the amount chiimed being the difference betweeen 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 money," it may be resorted to in any action, either ex contractu 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 property 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 1 Atlantic Mut. Ins. Co. v. McLoon, = Goble v. Howard, 12 Oliio State, 48 Barbour, 27. 165. 2 Lawton v. Kiel, 51 Barbour, 30; 34 ^ Hoover v. Gibson, 24 Ohio State, Howard Pract. 4t;5. 389. 3 Davidson v. Owens, 5 Minnesota, 69. '' Morton r. Pearman, 28 Georfjia, 323. 4 Ward V. Howard, 12 Ohio State, 8 Graves v. Strozier, 37 Georgia, 32. 158. 9 Monroe i'. Bishop, 29 Geor^'ia, 159. [•23] § 28 CAUSE OF ACTION. [CHAP. II. uiulertaking filed b}'" an appellant, " that lie will pay all the dam- ages and costs which may be awarded against the defendant on the api)eal, not exceeding Jf^SOO, and that if the judgment appealed from, or any part thereof, be affirmed, the appellant shall pay the amount directed to be jjaid thereby, or the part of such amount as to Avhich 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.^ § 27 a. The debt for which an attachment may issue must pos- sess an actual character, and not be merely possible, and depend- ent on a contingency which may never happen. Therefore, where the plaintiff alleged as a ground of attachment, that he was security upon a draft drawn for the defendant in the sum of $900, and that the defendant was about to remove himself out of the State, so that the ordinary process of law 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 sus- tained.^ § 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 Februarj', 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 days after that day, though on that day an agreement was made by the drawers • Hathaway v. Davis, 33 California, maintain a bill against the principal 161. debtor, in order to protect himself against 2 Monterey v. McKee, 51 California, loss by reason of the debtor's failure, be- 255. fore he has actually been subjected to 8 Benson v. Campbell, 6 Porter, 455 ; liability as guarantor. This doctrine, Taylor v. Drane, 13 Louisiana, 62; Har- however, is sustainable only on equitable rod V. Burgess, 5 Robinson (La.), 449. grounds, under equity jurisdiction, and In Moore v. Holt, 10 Grattan, 284, in a has not, so far as I iiave discovered, been proceeding by attachment in chancery, recognized as applicable to a proceeding authorized by the laws of Virginia, it at law. was decided, that a guarantor might [24] CHAP. II.] CAUSE OF ACTION. § 29 to take them up ; it was considered that the drawers could main- tain no action until the bills were actually taken up, and that the comi^letion 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.^ 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," it was 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 his 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 had 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 sufl&cient equity powers over its own judgments to postpone the collection of the amount of the judgment until the credit ^ Blanchard v. Grousset, 1 Louisiana Todd ii. Sliouse, 14 Ibid. 426 ; Hearne Annual, 96. v. Keath, 63 Missouri, 84. 2 Kead v. Ware, 2 Louisiana Annual, ^ ]\loor2 v. Dickerson, 44 Alabama, 498. See rrice v. Merritt, 13 Ibid. 52G ; 485. [•25] § 30 CAUSE OF ACTION. [CHAP. II. should expire, or to vacate it, if the security agreed on should be given. ^ § 30. In a case Avhich went up to the Supreme Court of the United States from Louisiana, the following facts were pre- sented. B., of Ciiarleston, 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 liim certain bills of exchange, which were accepted for the full amount of those proceeds, and Avere all negotiated to third persons, and were outstanding, and three of tliem were not yet due, when B. made an assignment for the benefit of his creditors. Z. & Co., upon hearing of it, brought suit against 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 j'et 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. The supposed debt was for the proceeds of a cargo of sugar and molasses, sold by B. on account of Z. & Co. Assuming 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 full 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 j^et 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 acce^^tances, 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 Ward V. Begg, 18 Barbour, 1.39. Annual, 324 ; Henderson v. Thornton, 37 2 Black »;. Zaoharie, 3 Howard, Sup. Ct. Mississippi, 448. 483. See Denegre v. Milne, 10 Louisiana [1>6] CHAP. 11.] CAUSE OF ACTION. § 34 § 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 ; tlie court regarding the latter as a debtor with- in the meaning of the statute.^ § 32. In Massachusetts, 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 07i the bills until after that day, yet 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. 2 § 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 V)rought 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.* § 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- 1 Smead v. Clirisfield, 1 Handy, 442. * Cox v. Reinliardt, 41 Texas, 591. 2 Wliitwell r. Brigliam, I'J Pick. 117. » Ware v. Todd, 1 Alabama, 199; 8 Levy V. .Millinan, 7 Georgia, 167; Jones i'. Holland, 47 Ibid. 732. Uant'orth v. Carter, 1 Iowa, 546. [27] § 34 CAUSE OF ACTION. [CHAP. H. debtedness, as near as may be," it was beld, that an action of ac- count might be instituted b}' attacliment, by one partner in a commercial adventure against another. The court remarked: " The hiw 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 claim of a joint-tenant, tenant in com- mon, or coparcener, is just as sacred as that of any other creditor ; and because he cannot resort to the more usual common-law ac- tions to enforce his rights, affoi'ds no reason why he should 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 na- ture of the indebtedness, with great particularity, it alleges that the defendant, by means of the premises, is indebted to the plain- tiff in a sum stated, and that the defendant is not a resident of the State. Upon such an affidavit an attachment may properly issue." ^ In Georgia, where a contract was entered into between a freedman and a landlord, to make a crop for one year ; the land- lord 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 freed- man could make out an account against the landlord for his share of the crop, and enforce the collection of the same by attach- ment.2 In Louisiana, an action by attachment, by one general part- ner 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.^ ^ Humphreys v. Matthews, 11 Illinois, Brinegar v. Griffin, 2 Louisiana Annual, 471. See Brinegar v. Griffin, 2 Louisiana 151; Johnson v. Short, Ibid. 277. Annual, 154. ■* Rice v. Beers, 1 Rice's Digest of 2 Hollowayy.Briukley, 42 Georgia, 226. South (Carolina Reports, 75. Tliis case 2 hewy V. Levy, 11 Louisiana, 581 ; cannot pro.bably be found in any of the 5 Wheeler v. Farmer, 38 California, 203. [28] CHAP. II.] CAUSE OF ACTION. § 35 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 defendant, and the defendant's agreement to pay the partnership liabilities, etc., 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, but he 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 $22,000. 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 volumes of the South Carolina Reports, ^ Ackroyd r. Ackroyd, 11 Abbott but it is no doubt authentic. Mr. Rice's Pract. 345; 20 Howard Pract. 93; Guil- Digest contains many cases decided in hon v. Lindo, 9 Bosworth, 601 ; Ketciium Soutli Carolina, and nowhere else re- v. Ketchum, 1 Abbott Pract. n. s. 157. ported. In tliat State they are often ^ cleverly v. Brackett, 8 Mass. 150. referred to in tiie opinions of the Court * Cornwall v. Gould, 4 Pick. 444 ; of Appeals as authoritative. Whoever Beckwith c. Sibley, 11 Ibid. 482; Wiiit- would understand the reason of tlie ab- well v. Brigham, 19 Ibid. 117. In Taylor sence of those cases from the Reports, ia v. Cheever, 6 Gray, 146, the court said : referred to the I'reface to Nott & Mc- " The decision in Cleverly v. Brackett, Cord's Reports. that a creditor to whom a debtor has 1 Treadway v. Ryan, 3 Kansas, 4.37. pledged a chattel as security for a debt, [29] §36 CAUSE OF ACTION. [chap. II. property may waive his rights under tlie mortgage, and attach the mortgaged property to satisfy the mortgage debt,^ even after he has taken possession of it under the mortgage.''^ § 35 a. In Illinois a creditor having a judgment against his debtor, upon which he has the right to issue execution, may sue b}'' attachment 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 the declaration.* A motion to dissolve, or a plea in abatement, would be the proper course. And no advantage can be taken of the defect after ver- dict, where the defendant appears and pleads to the merits." Nor can a variance between the affidavit and attachment and the cannot, in a suit for tlie debt, attach other property of the debtor without first returning tlie pledge, is contrary to all the autliorities before and since, and is not to be regarded as law." See Ciiapnian V. Clougl), 6 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 the 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 attachment against B. on one of the notes, and B. moved to dis- solve the attachment because A. had the equitable lien. In support of the motion, B. claimed that thougii the conveyance of the 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 wliom he immediately conveyed the prop- erty, without receiving any consideration therefor, and the title still remained in C, who had furnished tiie cash portion of the purchase-money, — the first pay- ment, and had paid one of the notes given for tlie remainder. The court over- ruled the motion, and said : " The policy [30] of the law is, that a creditor, holding a security by way of ' mortgage, lien, or pledge, upon real or personal property,' shall not resort to the summary process of attachment until he has exhausted his security. But it must be a lien of a fixed, determinate character, capable of being enforced with certainty, and depending on no conditions. If the land has been alienated by the vendee, it is not incumbent on the vendor to go through a litigation with the purchaser, in order to ascertain whether he is a purchaser for value, with- out notice, before resorting to his attach- ment. The vendee, by alienating the land, has not only interposed an obstacle in the way of enforcing the lien, but has rendered it doubtful whether the lien is not wholly defeated. He cannot compel the vendor to solve this doubt by pro- ceeding against the purchaser before su- ing out his attachment." Torter y. Brooks, 35 California, 199. 1 Buck V. IngersoU, 11 Metcalf, 226; Whitney v. Farrar, 51 Maine, 418. 2 Libby V. Cushman, 29 iVlaine, 429. 3 Young V. Cooper, 59 Illinois, 121. * Cain ('. Mather, 3 Porter, 224 ; Jordan V. Hazard, 10 Alabama, 221. & Hedus V. Wofford, 4 Smedes & Marshall, 679 ; Marshall v. White, 8 Por- ter, 651. CHAP, n.] CAUSE OF ACTION. § 37 a complaint be taken advantage of by demurrer ; ^ but may by plea in abatement.^ § 36 a. Where an attachment is obtained on a cause of action not authorizing it, and the 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 give the proceedings any vitality under that writ. Such amendment merely makes a case authorizing proceedings to acquire jurisdic- tion, 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 sucli 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, with- out so proceeding against the others.^ 1 Roberts v. Burke, 6 Alabama, 348 ; •* Trenton Banking Co. v. Haverstick, Odom V. Sliackletbrd, 44 Ibid. 331. 6 Halsted, 171. 2 Wright V. Snedecor, 46 Alabama, 92. ° Chittenden v. Hobbs, 9 Iowa, 417; 8 Pope V. Hibernia Ins. Co., 24 Ohio Austin v. Burgett, 10 Ibid. 302 ; over- State, 481. See Union C. M. Co. v. Raht, ruling Courier v. Cleghorn, 3 G. Greene, 16 New York Supreme Ct., 208; Watt v. 523, and Ogilvie v. Washburn, 4 Ibid. Games, 4 Heiskell, 532. 648. [31] § 40 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. CHAPTER III. ABSENT, ABSCONDING, CONCEALED, AND NON-RESIDENT DEBT- ORS ; AND DEBTORS REMOVING OR FRAUDULENTLY DISPOSING OF THEIR PROPERTY. § 38. Attachments 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 ordinar}^ j^rocess 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.^ 1 Fuller V. Bryan, 20 Penn. State, 144 ; 2 Watson v. Pierpont, 7 Martin, 413. Mandel v. Peet, lb Arkansas, 236. [32] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 43 § 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 hiw ; 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 Supreme Court of ]Mis- 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 maj^ be asserted, however, 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 before 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 ordinary process of law cannot be served upon 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 the act of departure which would sustain an attach- ment. Unlike the case in Missouri just referred to, the matter of duration of absence was not involved, but the intent of the de- parture. 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 Tliompson, 1 Wendell, 43. 657 ; Ellington v. Moore, 17 Ibid. 424. 2 Kingsland v. Worsliain, 15 Missouri, See Fitch v. Waite, 5 Conn. 117. 3 [33] §-^4 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. lield. tliat if he loft the State, though openly and pnhlicly, and intending to transact business abroad and then return, bnt 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 tlie defendant had absconded, or departed from his abode, or re- mained out of the State, with 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. Tlie opinion of the court presents the following summary of the grounds on wliieh the attachment was sustained : " The defendant in this case having con- fessedly departed the State, all that is required is for the court to be satisfied that his departure was with intent to avoid tlie service of process. So that if tiie defendant was on the 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 having the explosion take place in liis absence, and of avoiding the importu- nity and the proceedings of his creditors, it would 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 his property behind him, except the £500 which was required for his foreign adventure. Still, he may have designed to avoid tlie service of a summons on behalf of his creditors; and if he had such an intention, the attach- 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 [34] 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 beliind 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 he saw some of them within a day or two of his departure, and after lie had taken his passage ; from the tenor of his conversations with them, wliich 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 affairs, 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 wliere- 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 tiie opportunity on this motion, have given no exj)lanation of either of the.1. See ber, 18-5',J, with stock for Mississippi and Eeeves v. Comly, '■] Ibid. 36:3 ; Simons v. Louisiana. lie expected to ship the Jacobs, 15 Louisiana Annual, 425. stock on board a steamer at Louisville on 3 Clark V. Arnold, 9 Dana, 305. In the 2()th December, but was unexpect- Kentucky, an attachment is authorized edly and unavoidal)ly detained at Louis- where the debtor " has been absent from ville until the 24th, when lie embarked, the State four months." Under this pro- with his stock, on a steamer bound down [35] § 47 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. attachment against a debtor, "being without tlie 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 that he had left the State. ^ § 47. An interesting case arose in New York, which, though not very fully and definitely reported as to the particular rule deducible from it, maj^ 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 averment 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 construction of that clause in the Code of Procedure authorizing an attach- ment where the defendant " has departed from the State with intent to defraud his creditors, or to avoid the service of a sum- mons." Here, it will be noticed, is one act, coupled, disjunctively, 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 attach- ment, and adduced evidence to disprove the alleged intent. The plaintiff gave evidence to sustain the allegation 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 be questioned that the Oliio River. He did not return to does consummate his purpose, and is ab- Kentucky until about tiie first of the fol- sent from his iiome, pursuant to such in- lowing Ma}'. On and after the 21st of tention, for the period of four months, we April, several attachments were sued out tiiink this should be regarded as an ab- against him. The question was, whether sence from the State, within the meaning the four months' absence from the State of the code and the intention of tiie Leg- had elapsed on the 21st of April, which islature, notwithstanding some unlooked- was more than tiiat period after he left for casualty may have delayed him a few liis house, but less than that after he em- days from passing beyond the territorial barked at Louisville. The court consid- boundary of the State." Spalding v. ered the matter at length, and announced Simms, 4 Metcalfe (Ky.), 285. its conclusion in these words: "Where ' Wheeler v. Degnan, 2 Nott & Mc- the debtor leaves his home with the in- Cord, 323. tention of going out of the State, and [36] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 49 this is a just and sound view of the matter. The designated in- tents, though severally stated, are very similar in cliaracter, and it might be inipracticable to state with certaint}', 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, conceals himself, or withdraws himself from his usual place of residence 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 has resided.^ The Supreme Court of Connecticut remarked : " If a person depart from his usual residence, or remain absent therefrom, 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 returning, and without any fraudulent design, he has not absconded, within the intend- ment of the law." Therefore, Avhere 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- ute authorizing an attachment against any person absconding or 1 Morgan v. Avery, 7 Barbour, 656. 3 Field ??. Adreon, 7 Maryland, 209 ; 'i In Bennett v. Avant, 2 Snced, 152, Stouffer i;. Niple, 40 Ibid. 477. the Supreme Court of Tennessee said: < Fitch v. Waite, 5 Conn. 117. See " To abscond, in a lefial sense, means to Oliver v. Wilson, 29 Georgia, 642. hide, conceal, or absent one's self clan- •■> Matter of Fitzgerald, 2 Caines, 318 ; destineiy, witii tlie intent to avoid legal Matter of Scliroeder, G Cowen, 003. process." [37] § 52 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. concealing himself, so that the ordinarv process of law could not be served u]>on him, it was held, that onl^' residents of the State who absconded were within tlie 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 can- not be served upon him," an attachment was sustained, though the defendant was a resident of another State, and was only cas- ually 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 liis creditors. Upon its being made to appear to the court that he 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 author- ized to say that he believed they had done so.* § 51. The act of absconding necessarily involves intention to abscond. Therefore a public and open removal, or a departure unaccompanied with that intention, will not constitute an ab- sconding. Much 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 alleo-ed 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 thereto, as to the point of his destination, the object he had in 1 Shugart v. Orr, 5 Yerger, 192. ^ Boardinan v. Bickford, 2 Aikens, ■- Middlebrook v. Ames, 5 Stewart & 345. Porter, 158. ^ Pitts v. Burrouglis, 6 Alabama, 733; 3 Matter of Cliipman, 1 Wendell, 66. Havis v. Taylor, 13 Ibid. 324. 4 Matter of Warner, 3 Wendell, 424. [38] CHAP. III.] DEBTORS, ABSENT, ABSCONDING, ETC. § 54 view, and when lie expected to return, is a part of the re-s geatce^ and may be received in evidence as exphmatory of his intentions, and, in the absence of opposing proof, might repel the imputation that he was absconding, or otherwise endeavoring to evade tlie service of ordinary process.^ And so his acts and dechirations at the time 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 ajl the partners in attachment as absconding debtors, and one of the defendants pleaded in abatement that he had not ab- sconded, the plea was held sufficient to defeat the 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 tiiey are regarded as distinct. More usuall}', 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- fore, an affidavit stating that the defendant "absconds or conceals himself," does not exhibit two separate grounds for attachment, 1 Pitts V. Burrotifflis, 6 Alabama, 733; 2 Ross v. Clark, 32 Missouri, 2%. Offiitt v. Edwards, 9 Robinson (La.), 90; » Leach v. Cook, 10 Vermont, 239. Havist'. Taylor, 13 Alabama, 3ii4 ; Burgess * Hiiies u. Kimball, 47 Georgia, 587. I'. Clark, 3 In.liana, 250; Oliver v. Wil- ^ pi,iliips v. Orr, 11 Iowa, 283. son, 29 Georgia, 042. [39] § 56 DEBTORS, ABSENT, ABSCONDING, ETC. [CHAP. III. which, coupled by the disjunctive " or," would be vicious, but one only ; for the terms are of equivalent meaning.^ § 54 a. An attachment was obtained on an affidavit that the defendant " so conceals himself that process canoiot be served upon him." The facts were, that the defendant was called upon in the evening for payment of the demand, and notified that un- less he made it, suit would be instituted. During the night, or the next morning, he sold out his entire stock of goods, without taking an invoice, and in the morning left, and was absent for two months. When called upon, the evening before, he had promised to call and see plaintiff's attorney in the morning, but left without doing so, or giving any notice that he designed to leave. Upon these facts an instruction to the jury in the follow- ing terms was held correct : " It is concealment to avoid service of process, no matter whether for an hour, a day, or a week ; whether with a view to defraud creditors, or merely to have time to make a disposition, lawful or otherwise, of his property, before his creditors got at him ; it is placing himself designedly so that his creditors cannot reach him with process ; which constitutes concealment under the statute." ^ And if a man leave a place, requesting false information to be given of his movements, he conceals himself.^ § 55. Where an attachment was issued, on affidavit that " the defendant was secreting himself, so that the ordinary process of law could not be served," and it was shown on his behalf, that he was temporarily absent from his place of abode, on a visit to his son-in-law in another county of the same State ; that the plaintiff knew the defendant's intention to make said visit long before he started, and tliat his intention was also publicly and notoriously known ; it was held, to be unnecessary for the de- fendant to show that he communicated to the plaintiff' his inten- tion to make the visit ; and that it was sufficient if it were known in the neighborhood, and could have been ascertained on inquiry.* § 56. Concealment, to authorize an attachment, must be with i Goss V. Gowing, 5 Ricliardson, 477 ; ^ North v. McDonald, 1 Bissell, 57. Conrad v. McGee, 9 Yerk Commonwealth Ins. Co., 326 ; Union Bank v. U. S. Bank, 4 Hum- 15 Sergeant & Hawle, 173; U. S. Bank v. phreys, 369; Mineral Point R. R. Co. v. Merchants' Bank, 1 Robinson (Va.), .573; Keep, 22 Illinois, 9; St. Louis Perpetual South Carolina R R. Co. v. McDonald, 5 Ins. Co. v. Cohen, 9 Missouri, 421. [59] § 81 LIABILITY OF CORPORATIONS, ETC. [CHAP. IV. § 80. The foreign character of a corporation is not to be deter- mined by the place where its business is transacted, or where the corporators reside, but by the phice where its charter was granted. With reference to inhabitancy, it is considered an inhabitant of tlie State in which it was iucorporated.^ And where, as is some- times the case, a corporation is cliartered by two or more States, it is a domestic corporation in each of them.^ And if a corpora- tiou created in one State be authorized by the law of another State to exercise therein certain powers, and such law further declare that it shall be there entitled to all the privileges, rights, and immunities conferred upon it by the law of its incorporation ; and it is not by the law of the State where it was incorporated liable to be sued by attachment for the mere failure to pay its debts ; it is not liable to be sued by attachment as a non-resident of the other State. *^ § 81. Representative Persons. In New York, it was held, in a case which arose at an early pei'iod, that the statute of that State respecting absent debtors did not warrant proceedings against heirs, executors, trustees, or others claiming merely by right of representation.* Sul)sequently this doctrine was recognized and affirmed, under another statute, which the court said was much more explicit than that which Avas the subject of the former con- struction. Under this second statute an attachment might be obtained by a creditor " having a demand against the debtor personally.''''^ The same views have been expressed in Rhode Island, Connecticut, New Jersey, Pennsylvania, South Carolina, 1 Harley v. Cliarleston Steam-Packet ^ Martin v. Mobile & 0. R. R. Co., 7 Co., 2 Miles, 249; South Carolina Railroad Bush, 116. In New Jersey, there is a Co. V. McDonald, 5 Georgia, 531 ; Day v. statute authorizing attachment to issue Newark I. R. Man. Co., 1 Blatclifonl, 628 ; " against any corporation or body politic Mineral Point R. R. Co. w. Keep, 22 Illinois, not created or recognized by the laws of 9. In Cooke v. State Nat. Bank, 50 Bar- this State ; " and it was held, that an au- bour, 339, 3 Abbott Pract. n. s. 389, under thority given by a law of that State to a a statute which defined a foreign corpora- foreign corporation to hold real estate tion to be one " created by or under the therein for the purpose of tran.'. Quick, 1 Green, 306 ; State v. Shreeve, 3 Green, 57 ; Bridge v. Bracken, 3 Chandler, 75 ; Wight V. Warner, 1 Douglass, 384; Chandler v. Nash, 5 Michigan, 409; Fire- baugh V. Hall, 63 lUinois, 81. CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 87 with special powers, to be exercised, not through its ordinary- process and modes of procedure, but in an extraordinary mode prescribed by statute, neither the jurisdiction nor the remedy is to be extended beyond the legislative grant ; ^ but the proceed- ings of the court must be regarded as those of a court constituted with special and limited jurisdiction, and will be held invalid if the facts conferring jurisdiction do not appear.^ The propositions thus briefly stated will be seen to bear on at- tachment proceedings. § 86. Any movement by a court is an exercise of jurisdiction.^ In attachment proceedings the issue of the writ of attachment is such a movement ; * and where the right to exercise jurisdiction in that mode depends upon the exhibition, by affidavit, of certain facts, it is the affidavit which brings the power of the court into action. If there be no affidavit, the whole attachment proceeding is incurably void.^ § 87. Hence, in an attachment suit, under any system requiring an affidavit, it is always the defendant's right, and may become that of others, to question the exercise of jurisdiction in the par- ticular case through attachment, because of the want of legal foundation therefor. In this connection, therefore, importance attaches to the point whether the defendant was personally served with process in the action. If he Avas, or if he appear to the action without service, the cause becomes mainly a suit in personam., with the added in- cident, that the property attached remains liable, under the con- trol of the court, to answer to such demand as may be established against him by the final judgment of the court.^ In such case, if 1 Pringle v. Carter, 1 Hill (S. C), 53. Christie v. Unwin, 11 Adolphus & Ellis, 2 Williamson v. Berry, 8 Howard Sup. 373 ; Muskett v. Druminond, lOBarnewall Ct. 495; Boswell v. Otis, 9 Ibid. 336; & Cresswell, 153. Ransom v. Williams, 2 Wallace, 313 ; ^ Rliode Island v. Massachusetts, 12 Morse v. Presby, 5 Foster, 299 ; Eaton v. Peters, 657 ; Grignon v. Astor, 2 Howard Badger, 33 New Hamp. 228; Denning v. Sup. Ct. 319. Corwin, 11 Wendell, 647; Striker v. * Non potest qitis sine hre.vi aijere. Kelly, 7 Hill (N. Y.), 9; Embury v. Con- Fleta, 1. 2, c. 13, § 4. Nemo sine actione nor, 3 Comstock, 511 ; Gray v. McNeal, experitnr, et hoc nan sine brevi sice libello 12 Georgia, 424; Foster v. Glazener, 27 conventionali. Bracton, 112. Alabama, 391 ; Haywood v. Collins, 60 5 Inman v. AUport, 66 Illinois, 540. Illinois, 328; Firebaugh v. Hall, 03 Ibid. « Cogper v. Reynolds, 10 Wallace, 308. 81; Cooper v. Sunderland, 3 Iowa, 114; [65] § 87 a AFFIDAVIT FOR ATTACHMENT. [CHAP. V. lie make no question of the right of the court to exercise jurisdic- tion over him b}^ attachment, the proceedings, liowever defective the affidavit, will be valid ; and the rights acquired through them will not depend on the attachment for their validity, but upon the judgment ; which, in such case, cannot be impeached in any collateral proceeding.^ When, therefore, the defendant appears to the action, and in any authorized wa}^ assails the attachment on account of absence of, or insufficiency in, the affidavit, his motion or plea is based, not upon mere irregularity in the proceedings, but upon the want of proper foundation for the exercise of jurisdiction over him in that particular mode. If his motion or plea be sustained, the writ, and all proceedings under it, are coravi nonjudice and void,^ un- less the defect be amendable, and be amended ; and no such amendment can be made, unless authorized by law expressly applicable to such cases.^ § 87 a. The matter for present consideration, however, is not the defendant's proceedings to defeat the attachment ; but whether, and to what extent, attachment proceedings may be assailed collaterally for infirmity in the affidavit, when title is claimed through them. If vulnerable at all in this respect when so assailed, it must be because the affidavit was not lawfully sufficient to support jurisdiction by attachment ; for no doctrine is better settled than that mere errors and irregularities in judicial action cannot be questioned collaterall}', but must be corrected by some direct proceeding for that purpose, either before the same court, to set them aside, or in an appellate court.^ But it is equally well settled that the jurisdiction of any court, exercised in any case, may be assailed in other courts, in which 1 Toland v. Sprague, 12 Peters, 300. 354 ; McCulloeh v. Foster, 4 Yerger, 162 ; ••2 Smith V. Luce, 14 Wendell, 237 ; Conrad r. McGee, 9 Ibid. 428 ; Whitney Ex parte Haynes, 18 Ibid. 611 ; Ex parte v. Brunette, 15 Wisconsin, 61. Robinson, 21 Ibid. 672 ; In re Faulkner, •* Brown v. McCluskey, 26 Georgia, 4 Hill (N. Y.), 598 ; //; re Bliss, 7 Ibid. 677 ; Cohen v. Manco, 28 Ibid. 27 ; 187 ; Mantz v. Hendley, 2 Hening & Slaughter v. Bevans, 1 Pinney, 348. Munford, 308 ; McReynolds v. Neal, 8 * Kempe's Lessee v. Kennedy, 5 Humphreys, 12; Maples v. Tunis, 11 Cranch, 173; Thompson v. Tolmie, 2 Ibid. 108; Wight v. Warner, 1 Douglass, Peters, 157; Voorhees v. Bank U. S., 10 384 ; Buckley v, Lowrey, 2 Michigan, Ibid. 449 ; Harvey v. Tyler, 2 Wallace, 418 ; Clark v. Roberts, 1 Illinois (Breese), 328 ; McGavock i'. Bell, 3 Coldweli, 512 ; 222 ; Cadwell V. Colgate, 7 Barbour, 253 ; Gibbons v. Bressler, 61 Illinois, 110; Bruce v. Cook, 6 Gill & Johnson, 345 ; Kruse v. Wilson, 79 Ibid. 233. Kennedy v. Dillon, 1 A. K. Marshall, [66] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 87 6 its proceedings are relied on by a party claiming the benefit of thera;! and if there be found in them a total want of jurisdic- tion, they may, by the court in which they are questioned, be rejected as a nullity, conferring no right and affording no justifi^ cation. 2 And no court exercising a special and limited power can so determine its right to take jurisdiction through that power in a given case, as to preclude one not a party to the proceedings from questioning that right in a collateral inquiry ; for, as the validity and conclusiveness of the decision on that point must depend on the authority of the court to make it, the decision cannot be con- clusive evidence of that authority. This would be saying that the court had jurisdiction to decide, because it had decided that it had jurisdiction.^ § 87 h. It is where attachment proceedings are purely ex parte — the defendant not being personally served with process, and not appearing to the action — that the collateral impeachment of the attachment for jurisdictional defect may be to him, or to per- sons claiming under him, a matter of signal importance. There the proceeding is simply one to take, by process of law, one man's property, and, without his assent or knowledge, give it to another : a severe recourse, in derogation of the common law ; in regard to which nothing in favor of jurisdiction is to be presumed, and which the law demands shall be pursued in conformity with the statute under which it is taken, or no title will pass through its instrumentality.* 1 Elliott V. Peirsol, 1 Peters, 328 ; " Broadhead v. McConnell, 3 Barbour, Shriver y. Lynn, 2 Howard Sup. Ct. 43; 175; Wheeler v. Townsend, 3 Wendell, Russell V. Perry, 14 New Hamp. 152 ; 247 ; Sears v. Terry, 26 Conn. 273. Hall V. Williams, 6 Pick. 232 ; Aldrich i;. * Thatcher v. Powell, 6 Wlieaton, 119 ; Kinney, 4 Conn. 380; Borden v. Fitch, Ronkendorff v. Taylor, 4 Peters, 341); 15 Johns. 121 ; Starbuck v. Murray, 5 Parker v. Overman, 18 Howard Sup. Ct. Wendell, 148 ; Shumway v. Stillman, 4 137 ; Ransom v. Williams, 2 Wallace, Cowen, 292; Noyes y. Butler, 6 Barbour, 313; Denning v. Smith, 3 Johns. Cli'y, 613; Chemung Bank i'. Judson, 4 Selden, 332; Jackson v. Shepard, 7 Cowen, 88; 2.54; Holt ?;. Alloway, 2 Blackford, 108; Atkins v. Rinnan, 20 Wendell, 241; Earthman y. Jones, 2 Yerger, 484 ; Rogers Bloom v. Burdick, 1 Hill (N. Y.), 130; V. Coleman, Hardin, 413; Davis v. Con- Sliarp v. Speir, 4 Ibid. 76; Sherwood v. nelly, 4 B. Monroe, 136. Reade, 7 Ibid. 434 ; Corwin v. Merritt, 3 2 Thompson v. Tolmie, 2 Peters, 157 ; Barbour, 341 ; Harrington v. People, 6 Voorhees v. Bank U. S., 10 Ibid. 449. Ibid. 607 ; Kelso v. Blackburn, 3 Leigh, For cases in which it has been held that 299 ; Barksdale v. Ilendree, 2 Patton, Jr., judgment against a garnishee will not & Heath, 43. protect liiui, where the court has no juris- diction of the defendant, see post, § 696. [67] § 88 AFFIDAVIT FOE ATTACHMENT. [CHAP. V. § 87 c. As will appear in a succeeding portion of tliis cliapter,i an attachnient issues, in some States, as a matter of right, upon affidavit being made that certain facts exist ; wliile in others it is required that the officer shall be satisfied, by affidavit presented to him, of the existence of the facts. In the former case the officer's duty is merely ministerial, involving no inquiry on his part, except as to whether particular facts are sworn to; in the latter, his functions are judicial, as well as ministerial ; he must be satisfied judicially, by the affidavit, not merely that the facts are sworn to, but that the evidence is sufficient to prove that they really exist. It will be noticed that the cases about to be cited, in which attachments have been successfully assailed collaterally, on account of insufficient affidavit, have arisen under each of those systems. § 88. The cases in which ex parte attachment proceedings have been successfully assailed collaterally, for insufficiency in the affi- davit to sustain jurisdiction, were those in which title to property was claimed through those proceedings. Such have arisen in New York, where the officer issuing the attachment acts judicially, in determining wliether the facts stated in the affidavit establish the ground of attachment ; and in Tennessee and Missouri, where the writ issues upon affidavit simply of the existence of certain facts. In all those States the question arose in actions of ejectment. In New York, the plaintiff claimed title as a purchaser at a sale made by trustees, appointed under the law of that State, in a proceeding by attachment ; the trustees being there empowered to sell the property attached. The title thus set up was assailed for want of jurisdiction in the officer who issued the attachment, because of the defective character of the affidavits, in not laying a sufficient ground for its issue. The court went into an exami- nation of the affidavits, and declared them insufficient, and held that the attachment was void ; that the subsequent proceedings fell with it ; and that the sale by the trustees conferred no title on the purchaser. " There was," said the court, "■ conferred upon the judge who issued the attachment a special and limited juris- diction. It is well settled that when certain facts are to be proved to a court having only such a jurisdiction, as a ground for issuing process, if there be a total defect of evidence as to awy essential 1 Post, §§ 97-100. [68] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 88 fact, the process will be declared void, in whatever form tlie ques- tion may arise. But when the proof has a legal tendency to make out a proper case, in all its parts, for issuing the process, then, although the proof may be slight and inconclusive, the pro- cess will be valid until it is set aside by a direct proceeding for that purpose. In one case, the court acts without authority; in the other, it only errs in judgment upon a question properly be- fore it for adjudication. In one case, there is a defect of jurisdic- tion ; in the other, there is only an error of judgment. Want of jurisdiction makes the act void ; but a mistake concerning the just weight of evidence only makes the act erroneous, and it will stand good until reversed." ^ The cases in Tennessee are of the same character. In one of them the court said : " It appears from the record of these proceed- ings, that the affidavit was defective, in not stating the cause for which the attachment issued, whilst the attachment is good in point of form, and assumes, in effect, that a perfect affidavit was made. It is now insisted that the writ of attachment shall be conclusive as to all the material facts it assumes, and that it can neither be aided nor impaired by reference to the affidavit required in such cases ; that the affidavit is not required to be recorded with the other proceedings in the Circuit Court, and that there- fore we can take no judicial notice of it. It will be observed, however, by reference to the act just referred to, that it is re- quired that the affidavit be made part of such record. We think it a reasonable and proper rule that the validity of this description of judicial sales shall be tested by the record of the Circuit Court, made in pursuance of the statute. It was intended by the statute that such record should be the proper and permanent memorial of the validity of the sale. The affidavit forms a material part of the record, and we think we are not precluded by the writ of attachment from taking judicial notice of it The affidavit was materially defective, and was not amended. The conse- quence is, that the judgment and execution on the attachment were void, and the sale communicated no title to the pur- chaser." 2 1 Staples u. Faircliild, 3 Comstock, 41 ; wliere a title derived througli ex parte Miller v. Brinkerlioff, 4 Denio, 118. attachment proceedings was held invalid, - Maples V. Tunis, 11 Humphreys, hecause the affidavit was made several 108; Conrad v. McGce, 9 Yerger, 428. days before the attaclnuent issued. See Wilson v. Arnold, 6 Michigan, 98, [69] § 89 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. In Missouri, the statute requires the plaintiff, before an attach- ment can issue, to file an afiidavit, stating that he has a just de- nnmd against the defendant, and the amount thereof 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, the existence of one or more of the causes which, according to the provisions of the statute, would entitle the plaintiff to sue by attachment. There an attachment was issued upon an affidavit merely stating that to the best of affiant's knowledge and belief the defendants were non-residents of the State. The attachment was levied on real estate, and the suit was prosecuted ex parte to judgment, the defendant being noti- fied by publication. Under execution the land was sold, and the validity of the title thereby acquired was the point in controversy ; the decision of which turned on the question whether the court had ever acquired jurisdiction of the attachment proceeding. The court held, that the affidavit was no foundation for the exercise of jurisdiction, and that no title passed under the sale.^ § 89. From what has been presented in the preceding sections of this chapter, the following propositions in regard to ex parte attachment proceedings, under any system requiring an affidavit as the ground for issuing the writ, may be considered estab- lished : 1. The issue of a writ of attachment is a movement in the exercise of jurisdictior. 2. There is no lawful right to make that movement, unless such ground be laid therefor, by affidavit, as the law prescribes. 3. If there be no affidavit, or if there be one, but with a total absence therefrom of statement of any fact prescribed by law as essential to the issue of the writ, then, in either such case, the writ is coram non judice and void. 4. If, however, the affidavit have a legal tendency to make out a case, in all its parts, for issuing the writ, then the jurisdiction will be sustained, though the affidavit be defective, until the pro- ceedings are set aside in some direct resort for that purpose. 5. The proceedings in ex parte cases under a void attachment may, in a collateral inquiry, be rejected as a nullity by any court in which rights are asserted under them. i Bray ;;. McClury, 55 Missouri, 128. [70] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 89 fit § 89 «. These propositions hinge upon the issue of the writ as the first movement in the exercise of jurisdiction. If lawfully- issued, and property of the defendant be attached under it, then the foundation for further judicial action is laid. But, if unlaw- fully issued, nothing done under it in ex parte cases can claim validity. For, as no jurisdiction in personam exists as to the de- fendant, whether the court can lawfully act at all depends upon its right to exercise jurisdiction in rem. If there be neither per- son nor thing for its jurisdiction to act upon, the whole proceed- ing necessarily falls. ^ Every such suit, therefore, proceeds to final judgment upon the assumption, that, through the operation of the writ, the defendant's property has been laivfully subjected to the power of the court. But if it was attached under a writ un- lawfully issued, it has not, in contemplation of law, been at all subjected to that power ; and no dominion which the court may, through the forms and agencies of the law, exercise over it, can devest the defendant's title to it ; for it is a dominion without jurisdictional right. If these views be not correct, then it would seem that all col- lateral inquiry into the legality and validity of ex parte attachment proceedings can be precluded by the mere production of a writ, no matter how unlawfully issued, with a return thereon of prop- erty attached ; thus making the writ and return incontrovertible evidence of their own legality. Should this ever become settled law, of course the rule caveat ertxptor., universally and immemori- ally applied to purchasers at judicial sales,^ would be inapplicable to this class of cases.^ ^ Ante, § 5 ; post, § 449. should not be questioned ; some protec- ^ Tlie Monte Allegre, 9 Wheaton, 616 ; tion afforded to those who purchase at Smith V. Painter, 5 Sergeant & Rawie, sales by judicial process ; and some defi- 223; Yates v. Bond, 2 Nott & McCord, nite rules established, by which property 382 ; Murphy v. Higginbottom, 2 Hill thus acquired may be transmissible, with (S. C), 397; McWliorter v. Beavers, 8 security to the possessors." Undoubtedly Georgia, 300 ; O'Neal v. Wilson, 21 Ala- sound as general propositions ; but, on bama, 288; Lang v. Waring, 25 Ibid, the other hand, sanctity is not attributa- 625 ; Vattier v. Lytle, 6 Ohio, 477 ; Creps ble to judicial proceedings devoid of juris- V. Baird, 3 Ohio State, 277; Rodgers v. dictional right ; nor is protection — save Smith, 2 Indiana, 526 ; Boggs v. Har- by statutory limitation, based on adverse grave, 16 California, 559; Arendale v. possession — due to a purchaser at a sale Morgan, 5 Sneed, 703. in pursuance of a judgment which the 3 In Voorliees v. Bank U. S., 10 court had no authority to render. More Peters, 449, the Supreme Court of the especially should no man's property be United States said : " Some sanctity taken from him and given to another, should be given to judicial proceedings; unless by lawful authority lawfully pur- some time hmited, beyond wiiich tiiey sued ; and the duty of guarding an ab- [71] § 89 6 AFFIDAVIT FOR ATTACHMENT. [chap. V. § 89 h. But it is only in regard to jurisdiction that the judicial action of any court may be collaterally impugned. As we have seen, it cannot be on account of mere errors and irregularities.^ When jurisdiction appears, the maxim omnia prcesumuntur rite esse acta applies in favor of the proceedings of every court, whether superior or inferior, or of general or limited jurisdic- tion.2 In such case the title acquired through the attachment will be sustained, though it should afterwards be shown that the allega- tions in the affidavit upon which the writ issued were false. Thus, in New Jersey, a bill in equity was dismissed, which sought to set aside a sale of real estate under attachment proceedings, on the ground that the defendant, who had been sued as a non- resident, was, in fact, when the attachment issued, a resident. The court held, that in the attachment suit the foundation of the proceedings and of jurisdiction was, not the non-residence of the defendant, but the plaintiff's affidavit of that fact ; and that the l^roceedings could not be collaterally assailed as void, by showing the falsity of the affidavit ; though if its falsity had, while the sent one against the unlawful seizure and transfer of liis property, without his knowledge, is more sacred, and more consonant with the maxims of law and the dictates of justice, tlian that of shielding a volunteer purcliaser at a judi- cial sale ; upon whom, in law, is the obligation to see that the proceedings through wiiich he seeks to acquire a title rest on a sure foundation of jurisdiction. In Wilson v. Arnold, 5 Micliigan, 98, the court said : " When the want of jurisdic- tion appears on the record of a court of general jurisdiction, the record is a nullity, and no rights can be acquired under it. To hold otherwise would be giving to courts a right, by the form of law only, to take property from an individual against his consent, and give it to an- other, by an ex parte proceeding not au- thorized by law. If it be said, It is nec- essary to protect innocent purchasers, we reply, When one of two innocent per- sons must suffer, he who is most in fault must be the victim. Now, who is most in fault, — the defendant in the attach- ment suit, who knows notliing of the proceedings against him, or he who pur- [72] chases property under such proceedings, without looking into them to see whether they are authorized by law 1 It is a well- settled principle, that one who purchases property without looking into the title- deed of his grantor is, by his own negli- gence, chargeable with notice of any de- fect in the title appearing on the face of the deed." 1 Ante, § 87, a. '^ Cooper V. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 Ibid. 77; Little r. Sinnett, 7 Ibid. 324 ; State v. Berry, 12 Ibid. 58 ; Rowan v. Lamb, 4 G. Greene, 468; Commissioners v. Thompson, 18 Alabama, 694; Sheldon v. Newton, 3 Ohio State, 494; Reeves v. Townsend, 2 Zabriskie, 396 ; Paul v. Hussey, 35 Maine, 97 ; State v. Hinchman, 27 Penn. State, 479 ; Fowler v. Jenkins, 28 Ibid. 176 ; Wall i;. Wall, 28 Mississippi, 409 ; Cason V. Cason, 31 Ibid. 578 ; Fox v. Hoyt, 12 Conn. 491 ; Raymond v. Bell, 18 Ibid. 81 ; Wight v. Warner, 1 Doug- lass, 384; Wells v. Stevens, 2 Gray, 115; Harrington v. People, 6 Barbour, 607 ; Morse v. Presby, 5 Foster, 299. CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 90 6 action was pending, been therein sliown, the writ would have been quashed. ^ § 90. If in the proceedings of a court exercising a special and limited jurisdiction the facts which authorize its exercise ought to appear, how must they appear ? Manifestly, by the record. Whatever, in such case, is requisite to show that the action of a court is coram judice, must necessarily be a part of the record in the case in which the jurisdiction is exercised. Hence, wherever in attachment cases the point has been presented, it has been ruled that the affidavit is part of the record.^ If no affidavit appears, it was held, in Indiana, that no evidence — save, per- haps, in the case of loss or destruction — is admissible to prove that one was made : even a recital in the writ to that effect will not prove the fact, nor sustain the proceeding.^ On the other hand, in the United States Circuit Court for Ohio, in a case where an attachment proceeding was assailed collaterally, be- cause the record showed no affidavit, the court said, it could not presume there was no affidavit, because none was copied into the record ; for in making up the record the clerk might have omitted the affidavit, supposing it not to be part thereof.^ If there be an affidavit, but not filed, the fact that it was de- livered to the officer before the writ issued, and was the ground of its issue, but that he failed at the time to file it, may be proved by him, so as to authorize it to be filed nunc pro tmic.^ § 90 a. The requirement of an affidavit to be filed in the clerk's office, before an attachment can issue, is sufficiently met by the filing of a petition, sworn to, and containing the allega- tions required to be made in an affidavit. The petition supplies the place of, and dispenses with, a separate affidavit.^ § 90 b. Where the affidavit is made on the same day the writ 1 "Weber v. Weitling, 3 New Jersey Yerger, 428 ; Watt v. Carnes, 4 Heiskell, Eq. 441. See Foster v. Higginbotham, 532. 49 Georgia, 263 ; Dow v. Smitli, 8 Ibid. ^ Bond v. Patterson, 1 Blackford, 34. 551. 4 Biggs V. Blue, 5 McLean, 148. ^ Stayjles i\ Faircliild, 3 Comstock, * Simpson v. Minor, 1 Blackford, 229. 141 ; Shivers v. Wilson, 5 Harris & Jolm- See Brash v. Wielarsky, 36 Howard son, 130; Ford i-. Woodward, 2 Smedes Pract. 253. & Marshall, 260; Maples v. Tunis, 11 6 geott v. Doneghy, 17 B. Monroe, Humphreys, 108; Conrad v. McGee, 9 321; Shaffer r. Sundwall, 33 Iowa, 579. [73] § 01 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. was issued, and speaks of being annexed to the writ, the fact tluit its hing-nao'e implies tliat it was made after the writ, is no ground for impeaching its vahdity. Where two acts are done at the same time, that shall be considered to take effect first which ought in strictness to have been done first in order to give it effect.^ § 90 c. The omission of the statement of a venue in connection with the afiidavit does not vitiate it; the venue being in fact no part of the affidavit, but merely intended to show by an inspec- tion of the instrument whether it was made within the jurisdic- tion of the officer who administered the oath.^ § 91. In practice, the first point to be ascertained is, whether, in fact, an affidavit was made. There may be in the record what was designed for, and yet may not be, an affidavit, because not properly authenticated. The absence of the party's signature does not prove that he was not sworn, for it is not necessary to constitute an affidavit, unless required by statute, that the party making should sign it.-^ It is otherwise, however, where there is no official authentication ; though, under some circumstances, that has been supplied by implication from the contents of the record, and even by parol proof. Thus, where that appeared among the papers, which wanted only the signature of the judge to the jurat, to make it a complete affidavit, and across the face of the document were written the words, " sworn and subscribed before me," in the handwriting of the judge, but not signed by him ; and immediately below, and on the same paper, was writ- ten the order for the attachment to issue, which was signed by him ; and both the unfinished jurat and the order bore the same date ; and the order recited that the judge had read the petition, affidavit, and the documents annexed ; it was held, that he acted on the paper as an affidavit sworn to before himself; and in sign- ing the order containing that expression, he, by the strongest im- plication, certified that it had been sworn to before himself ; and that the want of his signature to the jurat was no sufficient ground for dissolving the attachment.* So, where the affidavit 1 Hubbardston L. Co. v. Covert, 35 shall, 579 ; Bates v. Robinson, 8 Iowa, 310. Michigan, 254. Sed contra, Cohen v. Manco, 28 Georgia, 2 Struthers v. McDowell, 5 Nebraska, 27. 491. i English v. Wall, 12 Robinson (La.), 3 Redus V. WofEord, 4 Smedes & Mar- 132. See White v. Casey, 25 Texas, 552 ; [74] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 92 was stated in the jurat to have been sworn to before one who signed his name, without adding thereto any official designation, but the writ was signed by a person in the same name, as clerk of the court in which the suit was brought; the court presumed that the affidavit was sworn to before the same officer.^ But where the papers do not justify such an implication, the absence of an official attestation to the affidavit has been held to be fatal to it.2 In Alabama, however, in a case of this description, it was considered, that, upon a motion to quash the attachment, every thing disclosed by the proceedings should be taken to be true ; that the court would suppose the affidavit to have been regularly taken ; and that if such was not the fact, it was to be taken ad- vantage of by plea in abatement, and not by motion to quash.^ Afterwards, in another case, of identical character, the defendant pleaded in abatement the want of the signature of the officer ; to which the plaintiff replied that the affidavit was in point of fact made ; to which replication the defendant demurred ; and it was held, that the plea was fully answered by the replication, and that, though it would have been more regular for the officer to have certified the affidavit, the court were not prepared to say that his omission to do so necessarily vitiated the proceedings.* And, in Iowa, where the affidavit was not signed by the affiant, nor certified by the clerk of the court, it was not considered a good ground for quashing the writ, when the court was satisfied from evidence that the affidavit was in fact sworn to before the writ issued, and that the failure of the plaintiff to sign the affi- davit, and of the officer to certify it, resulted merely from over- sight consequent upon the haste in which the act was done.^ § 91 a. If a person holding the office of clerk of a court insti- tute a suit by attachment in that court, his affidavit cannot be made before his own deputy. If so made it is a nullity.^ § 92. The next matter to be determined is, whether a particu- Farmers' Bank v. Gettinger, 4 West Vir- 521 ; "Watt v. Carnes, 4 Heiskell, 532 ; ginia, 305: Cook v. Jenkins, 30 Iowa, Cooper v. Smith, 25 Iowa, 269. 452 ; Kruse v. Wilson, 7',) Illinois, 233. 3 Lowry v. Stowe, 7 Porter, 483. • Singleton v. Wofford, 4 Illinois (3 * McCartney v. Branch Bank, 3 Ala- Scammon), 576. bama, 709. - Birdsong v. McLaren, 8 Georgia, ^ Stout v. Folger, 34 Iowa, 71. '' Owens V. Johns, 59 Missouri, 89. [75] § 93 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. Inr affidavit, relied on to sustain the attachment, was, in fact, juadc in the attaehnent suit. This would seem to be easily ascer- tainable, b}' the title of the affidavit, or by its connection with the jiapers in the cause ; but still there are reported cases on this point. An affidavit having no title, not referring to the summons or any other paper having the title, not stating who the deponent is, or what he has to do with the suit, or who is plaintiff or de- fendant, was held to be too indefinite to be the basis of an attach- ment.^ But in Arkansas, where the affidavit was not entitled in the suit, and did not describe the person who made it, as plain- tiff, or the debtor named in it as defendant, and was not attached to any of tlie original papers in the cause, it was considered sufficient.^ § 93. There is ordinarily no difficulty in ascertaining whether the affidavit was made by one authorized by law to make it ; for the statutory terras are usually sufficiently clear. Where the law requires it to be made by the plaintiff, and mentions no other person by whom it may be made, the rule aj)plied to attachment bonds under like circumstances, that the act can be done by no other than the plaintiff,^ would perhaps be established ; though the Supreme Court of Alabama refused to do so.* In the nature of things, however, such a rule would be subject to exceptions. Thus, it has been held, under such a statute, that an affidavit in an action by a corporation may be made by its agent.^ So, where a suit was brought by A. to the use of B., and B.'s agent, de- scribing himself as such, made the affidavit, it was considered that this met the terms of a statute requiring " the party apply- ing for the attachment, his agent, attorney, or factor," to make the affidavit.^ In Louisiana, however, an affidavit made by a third person, not appearing to have any knowledge of the matter, was held bad.''' If it appear, however, by the record, that the 1 Burgess v. Stitt, 12 Howard Pract. & Munford, 308 ; Pool v. Webster, 3 Met^ 401. calfe (Ky.), 278. 2 Cheadle v. Riddle, 6 Arkansas, 480 ; « Flake v. Day, 22 Alabama, 132. Kinney t'. Heald, 17 Ibid. 397. See Ruthe 5 Trenton Banking Co. v. Haverstick, V. Green Bay & M. R. R. Co., 37 Wiscon- 6 Halsted, 171. sin, 344. 6 Murray v. Cone, 8 Porter, 250. 3 Post, § 131 ; Myers v. Lewis, 1 Mc- 7 Baker v. Hunt, 1 Martin, 194. Mullan, 54 ; Mantz v. Hendley, 2 Hening [76] CHAP, v.] AFFIDAVIT FOE ATTACHMENT. § 94 affiant is a party to the suit, it is not necessaiy for him to make in the affidavit an}^ allegation of his interest therein. ^ § 94. If a statute authorize an affidavit to be made by the plaintiff's agent or attorney, and it be made by a person other than the plaintiff, he must be described in the affidavit as such agent or attorney, or it will be insufficient. Thus, where the petition was signed by '' F. & F., attorneys for plaintiffs," and the affidavit was made by " B. F. F.," without describing himself as agent or attorney, the court said it could not know that the affiant was one of the persons who signed the petition as attor- neys for the plaintiffs, nor would it look to other parts of the record to find information which ought to be contained in the affidavit itself.^ Where an affidavit may be made by an attorney, that term is not confined to an attorney in fact, but includes an attorney at law.^ But in Louisiana, it was held not to authorize an attorney at law, residing in another State, and employed to attend in the State of his residence to the collection of a debt, to come into Louisiana, without special authority from his client, and take out an attachment, making the affidavit himself.^ When a statute permits an affidavit to be made by an agent, it is said that if he swear "to the best of his knowledge," it will be sufficient.^ So, where an attorney made affidavit of the nature and amount of the defendant's indebtedness, " upon information and belief derived from and founded upon the Avritten admissions of the de- fendant, then in the attorney's possession," it was sustained.*^ But where he is required by the statute to swear "to the best of his knowledge and belief," it is not sufficient that he swear " to the best of his belief." " And in such case it need not be stated in the affidavit that the affiant made it for the plaintiff; it will be presumed that he did so.^ Nor need he swear that he is an agent or attorney of the plaintiff, if he so describe himself in the affidavit.^ Nor need it appear in the affidavit that he had per- 1 Bosbyshell v. Emanuel, 12 Smedes ^ Bridges v. Williams, 1 Martin, n. s. & Marshall, 63. 98. 2 Willis V. Lyman, 22 Texas, 268. See » Howell v. Kingsbury, 15 Wisconsin, Manley v. Headlcy, 10 Kansas, 88. 103. •' Clark V. Morse, 16 Louisiana, 575 ; ^ Bergh v. Jayne, 7 Martin, n. s. 609. Austin V. LatliuMi, 19 Ibid. 88. 8 Mandel v. Peet, 18 Arkansas, 236. * VVetmore v. Daffin, 5 Louisiana An- 9 Wetlierwax v. Paine, 2 Michigan, nual, 496. 555. [77] § 95 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. sonal knowledge of the facts stated therein.^ Where the statute authorized an affiihivit to be made by an agent or attorney, if tlie pLaintiff be absent from the county, " in tvhich case the affidavit shall state his absence,'''' the omission of this statement from an aflBdavit made by an attorney was held to vitiate it.^ § 94 a. If the law require an averment in the affidavit of the plaintiff's knowledge or belief of the facts alleged, and a person other tlian the plaintiff makes the affidavit, it will be insufficient if he allege his own knowledge or belief ; he should allege that of the plaintiff.^ Under such a statute an affidavit was made by an agent on behalf of certain named individuals, partners, trading under the name of A. T. S. & Co., and alleging "that the said A. T. S. & Co. have good reason to believe," &c. ; and it was ob- jected to because it did not say that the individuals composing the firm "had good reason to believe," &c. ; but the court over- ruled the objection.^ § 95. In every affidavit for an attachment, there are two dis- tinct parts, one relating to the plaintiff's cause of action and the amount due from the defendant to him, the other to the facts re- lied on as a ground for obtaining the writ. In regard to the first, it is as necessary to comply with all the requirements of the law, as in reference to the second. If the law prescribe the terms in which the plaintiff shall allege his claim, those terms must be fulfilled, or the attachment will fail. Thus, where the law required the affidavit to show: 1. The nature of the plaintiff's claim; 2. That it is just; and 3. The amount which the affiant believes the plaintiff ought to recover ; the omission of the second of those allegations was held to be fatal.^ So where the statute required it to appear by affidavit that a cause of action exists against the defendant, specifying the amount of the same and the grounds thereof; and the affidavit omitted to state the grounds ; it was held, that there was no juris- diction in the court to issue the writ.^ And under the same > White V. Stanley, 29 Oliio State, ^ Taylor v. Smith, 17 B. Monroe, 536 ; 423. Worthington v. Gary, 1 Metcalfe (Ky.), 2 Pool V. Webster 3 Metcalfe (Ky.), 470; Allen v. Brown, 4 Ibid. 342; Bailey 278. V. Beadles, 7 Bush, 383. ^ Dean v. Oppenheimer, 25 Mary- 6 2erega f. Benoist, 7 Robertson, 199; land, 368. 33 Howard Pnict. 129 ; Richter v. Wise, * Stewart i,-. Katz, 30 Maryland, 334. 6 New York Supreme Ct. 70. [78] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 95 statute, an attachment was set aside because the affidavit merely recited the facts relied on as a cause of action, without a direct statement of their existence.^ But under a statute requiring the affidavit to state the nature of the plaintiff's claim, it Avas con- sidered sufficient to state that the claim was for a certain sum " now due and pa3^able to the plaintiff from the defendants on an account for merchandise sold by the defendants as auctioneers on commission for the plaintiff." ^ And so, under a statute requiring the affidavit to state the amount of the defendant's indebtedness, " and that the same is due upon contract, express or implied," an affidavit was sustained, which stated the amount, and " that the same is due upon contract, express or implied;" it being con- sidered unnecessary to specify the particular description of con- tract sued upon.3 And under that statute an affidavit was sustained which omitted those words, but contained an aver- ment of facts, Avliich, if true, constituted an express contract.* It is no objection to an affidavit that the facts set forth in it would seem to show that the plaintiff might have claimed a larger sum in the suit than he did.^ And it is not essential that the amount should be set forth in terms in the affidavit, if the form of pleading be such as to require it to be stated in the petition, and it be there stated, and be referred to in the affidavit as the sum for which the attachment is obtained.^ Such, however, would not be the case where the common-law forms of pleading are pre- served. But where the cause of action and the ground of attach- ment are both required to be set forth in the petition, and the affidavit refers only to the latter, the attachment cannot be sus- tained, for there is nothing showing, under oath, what amount is due." The following case came up in Louisiana, where it is required by the Code of Practice that the plaintiff shall make a declaration under oath, at the foot of the petition, " stating the amount of the sum due him." The affidavit stated that the defendants were indebted to the plaintiff " in a sum exceeding two thousand dol- 1 Manton v. Poole, 67 Barbour, 330. ^ Henrie v. Sweasey, 5 Blackford. 273. 2 Ferguson v. Sniitli, 10 Kan.sas, 394. <> Boone v. Savage, 14 Louisiana, 169; 3 Klenk v. Scliwalni, 10 Wisconsin, Souberain y. Renaux, Louisiana Annual, 111. See Cope v. U. M. M. & P. Co., 1 201; Morgan v. .Johnson, 15 Texas, 568. Montana, 53. ' Blakley v. Bird, 12 Iowa, 001 ; Kelly * Uutlie V. Green Bay & M. R. R. Co., v. Donnelly, 29 Ibid. 70 ; Price v. Merritt, 37 Wisconsin, 344. 13 Louisiana Annual, 526. [79] § 95 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. lars ; " and it was decided that it was specified with sufficient certainty that at least that sum was due, and tliat the attachment niig'ht well lie for that sum, and as it did not issue for a greater, it could nt)t be dissolved.^ Under the same law, however, it was held, that where any sum the phiintiff might state would be con- jectural, it could not serve as the basis of a positive oath, and an attachment would not lie ; the case being that of one partner suing another for a specific amount, as a debt resultiug from the partnership transactions, when. there had been no settlement of the partnership accounts.^ Where the law required the affiant to state "that the amount of debt or sum demanded is actually due," it w^as considered, on a contest of the truth of the affidavit, not to mean that the pre- cise amount stated was actuallj^ due, but that the day of payment had arrived according to the contract ; and that, if the amount shown to be due was sufficient to give the court jurisdiction, the attachment should not be discharged, unless the discrepancy be- tween the amount claimed and the amount proved was so mate- rial as to warrant the imputation of fraud or bad faith on the part of the plaintiff.^ Where the law required the plaintiff to "make oath to the debt or sum demanded, and that no part of the same is paid, and that he doth not in any wise, or upon any account whatever, stand in- debted to the defendant," a plaiutiff made affidavit to the amount of his claim and that no part thereof was paid, and " that he is indebted to the defendant some small amount, but he does not know how much, contracted since this note was given ; " and it was held sufficient."^ In Georgia this case is reported. The affidavit stated that the defendant " was indebted to the plaintiff in the sum of one thou- sand dollars, which may be subject to a set-off, for an unascer- tained sum which, on final settlement, will be due the defendant from plaintiff, for certain improvements," &c. It was objected that no certain sum was sworn to ; but the court ruled otherwise, saying : " Any debt may be subject to be set off by another debt. But until one debt has been set against another, both remain debts. When there is an action, there can be no set-off until the 1 Flower v. Griffith, 12 Louisiana, 345. ^ Levy v. Levy, 11 Louisiana, 581. Sed contra, Jones v. Webster, 1 Pinney, ^ Zinn v. Dzialynski, 13 Florida, 597. 345. i Turner v. McDaniel, 1 McCord, 552. [80] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 96 defendant has done something showing a willingness in him for his debt to be set against the plaintiff's debt." ^ But in Wiscon- sin, an affidavit was considered too vague and uncertain, Avhich alleged that the defendant was indebted to the plaintiff "in the sum of $282.66, not deducting certain counter demands and set- off claims against the above claim, in favor of said defendant, the exact amount of which counter demands this affiant is not knowing." ^ Under a statute requiring " an affidavit, stating that the defend- ant is indebted to the plaintiff, and specifying the amount of such indebtedness as near as may be, over and above all legal set-ofPs," an affidavit was held bad, which stated that the defendant was indebted to the plaintiff " in the sum of $1,657.90 as yiear as this deponent can now estimate the same, over and above all legal set- offs." The court said : " The statute gives no latitude of state- ment in the affidavit as to the amount due. Some fixed and definite sum, to which the affiant can positively depose, must be named. In estimating the amount, so positively stated, the utmost exactness is not required. It may be a little more or a little less than the real amount without vitiating the proceedings, provided that the sum be such that the affiant can conscientiously depose to its correctness. But the amount named must be cer- tain, leaving no room for speculation on the face of the affida- vit."^ Much more will an affidavit be fatally defective, which wliolly omits a statement of the amount of the defendant's in- debtedness.^ § 96. If the statute do not require it to be stated how the debt accrued, it is no objection to the affidavit that it is not stated ; ^ but if required, a failure to state it will be futal.^ If the affidavit make no reference to the declaration or petition, as indicating the cause of action, it will be understood as being the same therein set forth ; and if it state that the defendant is indebted in any other manner than as therein declared, it will be bad ; for the debt sued on must be the one sworn to.^ Where a statute 1 Ilolston Man. Co. v. Lea, 18 Geor- O'Hrien y. Daniel, 2 Blackford, 290 ; Irvin gia, 647. V. Howard, 37 Georgia, 18. 2 Morrison r. Ream, 1 Pinney, 244. ^ In re IloUingsliead, 6 Wendell, 553 3 Lathrop v. Snyder, 10 Wisconsin, Smith v. Luce, 14 Ibid. "I'il. 293. ^ Cross v. Richardson, 2 Martin, n. s * Marshall v. Alley, 25 Texas, 342. 323. * Starke v. Marshall, 3 Alabama, 44 ; [81] § 08 AFFIDAVIT FOn ATTACHMENT. [CHAP. V. required tlie plaintiff to state in his affidavit the nature and amount of the defendant's indebtedness, a statement that the defenchmt was indebted " in the sum of fourteen lumdred dolhirs by his certain instrument of writing signed by him," was deemed sutiicient.^ So, where tlie statute required the affidavit to show "the nature of the jihiintiff's ehiim," and it averred "that said defendant is justly indebted to said plaintiff in the sum of $803.45, a balance due on account for goods sold and delivered ; " it was sustained.^ § 97. The most important point in the affidavit is that which sets forth the grounds on which the attachment is sued out ; and it is in reference to that, that the great mass of the decisions con- cerning affidavits have been rendered. This subject presents itself, under different statutes, in three distinct phases : I. Where the affidavit is required simply to state the existence of a particular fact, declared by law to be a ground of attachment ; II. Where the existence of such fact must be proved to the satisfaction of some named officer ; and III. Where the officer must be satisfied of the existence of such fact, by proof presented to him of the facts and circumstances which go to establish its existence. Let us examine these points. § 98. I. Where the affidavit must state simply the existence of a particular fact^ as a ground of attachment. Here, nothing is requi- site but conformity to the language of the statute. The affidavit, as we shall presently see, need not be literally according to the words of the law ; a substantial compliance is sufficient.^ The officer whose duty it is to issue the writ, inquires only whether there is this conformity. If he finds it to exist, he issues the writ in a ministerial, not in a judicial, capacity. He is not to be satis- fied judicially that the alleged fact is true ; but is simply to see whether it is sworn to. If sworn to, he is fully justified in issuing the process, and cannot be affected by any subsequent ascertain- ment of the groundlessness or falsity of the affidavit.^ 1 Plielps V Young, 1 Illinois (Breese), facts necessary to establish the ultimate 255; Haywood u. McCrory, 33 Ibid. 459. facts req lired by statute to be shown as 2 Tlieirman v. Vahle, 32 Indiana, 400. the basis of the writ, is not well taken. ^ Post, § 107. Under our statute it is the duty of the * In Wiieeler r. Farmer, 38 California, clerk of the court in which the suit is 203, the court said : " The objection that commenced, to issue the writ upon the the affidavit does not state the probative filing by the plaintiff of an affidavit stat- [82] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 99 In cases of this description the statntes of some States require the affidavit to allege that the affiant " has good reason to believe and does believe " the existence of the fact alleged as a ground for the attachment ; and there an allegation in those words would be sufficient. But in other States an affidavit is required " show- ing " the existence of a statutory ground. In such case, it is considered, in Ohio, that the averment of the affiant's belief of its existence, unaccompanied with any statement of facts on which the belief is founded, does not allege that existence, and is not a compliance with the law,^ § 99. II. Whej-e the existence of the ground of attachment must he proved to the satisfaction of the officer. In this case, the officer acts in a judicial, as well as a ministerial capacity. His judgment must be satisfied that the fact exists, before he issues the writ ; and if it nowhere appears that he was so satisfied, the attachment may be quashed.^ And where the statute required him to indorse on the affidavit that he was so satisfied, such indorsement was considered an indispensable prerequisite to the issuing of the writ, and that the officer could not be permitted to come into court, pending the suit, and indorse his satisfaction nunc pro tunc? In every such case evidence must be presented to, and acted on by, the officer. He cannot act upon his own knowledge, or mere belief, however well founded it may be, nor upon report or infor- mation. If proof be presented to him, a mere error in judgment as to its legality or sufficiency will impose no liability on him ; but there must be some proof. If he issues the writ without proof, he is liable to the defendant as a trespasser.* If the proof has a legal tendency to make out the case required by the statute, although it be so slight and inconclusive that, upon a direct pro- ceeding to review it, the officer's action in granting the writ would be reversed, yet in a collateral action the process will be ing the ultimate facts in the language of Ellison v. Tallon, 2 Nebraska, 14; Ilar- tiie statute, togetiier with an undertaking, rison r. King, 9 Ohio State, 388; Coston in amount and form as defined by statute, v. Paige, Ibid. 397; Mayhew v. Dudley,! Upon such compliance with the statute, Pinney, 95. the i»laintifE demands as a riglit the issu- ' Dunlevy v. Schartz, 17 Ohio State, ance of the writ, and, in issuing tlie writ, G40 ; (iarner v. White, 23 Ibid. 192. the clerk has no discretionary power. - Mayhew v. Dudley, 1 Pinney, 95; He but performs a ministerial duty in Morrison v. Fake, Ibid. 13:J. obedience to a plain statutory mandate-" 3 Slaughter r. Revans, 1 Pinney, 348. See Key burn r. Brackett, 2 Kansas, 227 ; * Vosburgh i\ Welch, 11 Johnson, 175. Ferris v. Carlton, 8 Philadelphia, 549 ; [83] § 100 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. deemed valid. It M-ill be so deemed because the officer, having proof presented to him, and being required by law to determine upon the weight of the proof, has acted judicially in making his determination. His decision may be erroneous, but is not void.' Tlie first point, then, to be determined is, what is competent evidence to present to the officer? It must be legal evidence; not the plaintiffs own oath, unless the statute expressly say so.^ The next point is, what is sufficient proof? The Supreme Court of New York sustained an attachment issued by a justice of the peace, upon affidavits made by witnesses that they believed the defendant resided out of the State.^ The legislature of that State afterwards modified the statute, so as to prevent the issue of attachments on the ground of mere belief; but Cowen, J., after the change, upon a review of the authorities in similar cases in other branches of the law, said that under the previous statute, — the same which was construed in the decision of the Supreme Court just referred to, — he should not hesitate in receiving the oath of mere belief.* § 100. III. Where the officer must be satisfied of the existence of the ground of attachment^ by proof of particular facts and circum- stances tending to establish its existence. In this case, as in the last, the officer acts both judicially and ministerially. He passes judicially upon the competency of the evidence, and also upon the sufficiency of the proof to establish the existence of the ground of attachment. For instance, if the statute authorize an attachment " whenever it shall satisfactoril}^ appear to the officer that the defendant is about to remove from the county any of his property, with intent to defraud his creditors," and require nothing more, it would be a case of the description mentioned under the next preceding head ; and under the views expressed by the New York court, an affidavit of belief would be sustained, if the officer acted upon it as sufficient : but if the statute fur- ther require that, before the attachment shall issue, " the plaintiff shall prove to the satisfaction of the officer the facts and circum- stances to entitle him to the same," then a new exigency is cre- 1 Skinnion v. Kelley, 18 New York, 3 Matter of Fitch, 2 Wendell, 298. 355 ; Hall v. Striker, 27 Ibid. 696. * Ex parte Haynes, 18 Wendell, 611. - Brown v. Hinclunan, 9 Johnson, 75. [84] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 100 ated, requiring evidence, which he shall deem competent, to be given of those facts and circumstances ; and that the facts and circumstances, when proved, shall satisfy him that the particular ground of attachment relied on exists. Hence, though the facts and circumstances he proved by competent evidence, if they do not in his judgment prove the main fact, he should not issue the writ ; and if he do issue it, his action is liable to be revised and overruled, either on tlie ground that tlie evidence submitted to him was incompetent, or that it was insufficient. And when his jurisdiction to issue the writ is in question, the point is not whet!ier there was before him conclusive evidence of the facts relied on, but it is sufficient if the proof had a legal tendency to make out in all its parts a case for issuing the writ. In order to defeat his jurisdiction it must be made to appear that there is a total want of evidence upon some essential point. ^ In reference to the affidavit in such a case, it has been decided, that the belief of the affiant that the defendant was about to do a particular act, the impending performance of which would au- thorize an attachment, would not sustain an attachment. " The plaintiif's own belief," said the court, " is neither a fact nor a circumstance upon which the justice can exercise his judgment. It is not sufficient that the plaintiff is satisfied of the unlawful acts or intentions of the defendant. The justice must be satis- fied, and he must be so satisfied from proof of facts and circum- stances ; not the belief of any one." ^ It has likewise been held, that an affidavit stating the information and belief of the party making it, as to certain facts, is not sufficient proof to authorize the writ to issue.^ And though the affidavit was unqualified in its terms that the defendant had left the State with intent to de- fraud his creditors, it was held insufficient, because it did not state the facts and circumstances. The court said : " Affirming that a party has left the State with intent to defraud liis credit- ors, may be predicated more upon matters of opinion, or belief, than upon fact. The affirmant may lionestly believe, and thus affirm it in general terms ; whereas, if called to state the facts ^ Sclioonmaker v. Spencer, 54 New ^ Tallman v. Bigelow, 10 Wemlell, York, 366. 420; Ex parte Haynes, 18 Ibid. 611; i Smith V. Luce, 14 Wendell, 237; Matter of Faulkner, 4 Hill (N. Y.), 598 ; Mott V. Lawrence, 17 Howard Pract. Matter of Bliss, 7 Ibid. 187 ; Pierse v. 55'.) ; Lorrain t'. Higgins, 2 Chandler, 116; Smith, 1 Minnesota, 82; Morrison v. 2 Pinney, 454. Lovejoy, 6 Ibid. 183. [85] § 101 AFFIDAVIT FOR ATTACHMENT. [CHAP V. and cireuinstances upon wliioli he readied the conclusion, the officer (l)eing unable to exercise his judgment in the matter) might well differ from him." ^ But wliere the matter to be proved is in itself a single and complete fact, not depending on other facts and circumstances to establish its existence, an affirm- ation of the fact in direct terms is sufficient. Such is the case where the non-residence of the defendant is the ground of attach- ment. There, no " facts and circumstances " are needed to prove the non-residence: itself is the fact and circumstance.^ But in such case of a single fact, no more than in any other, is the affi- davit of belief competent proof.^ While, however, it is not sufficient for an affidavit to state facts merely upon the information and belief of the party, yet inform- ation is not to be entirely rejected as evidence. Thus, where the allegation is, that the debtor has absented himself from his resi- dence in an illegal manner, information obtained from his family, on inquiry at his residence, may be admitted, in connection with other facts, to show that he has left liome ; when he went away ; where, and u]3on what business he went, and how long he in- tended to be absent. But such evidence, obtained from other sources, would not be admissible. The informant should be called. It may be, too, that the party making the affidavit should be allowed to speak upon information concerning the solvency of the debtor, provided the information come from persons who are not interested in the proceedings against him. But an affidavit that the I3arty has been informed and believes that the debtor is in- solvent, that he owes a large amount of money, or the like, with- out the addition of any fact within the knowledge of the party, or stating when or from whom the intelligence was received, can- not be regarded as of any legal importance.'^ But where, in any case, information is allowed to be stated in the affidavit, it will be of no value, unless the party swear that he believes it to be true.° § 101. Usually the plaintiff may allege as many grounds of at- tachment, within the terms of the law, as he may deem expedient.^ In doing so, the several grounds should be stated cumulatively; 1 Ex parte Kobinsnii, 21 Wendell, 672. * Matter of Bliss, 7 Hill (N. Y.), 187. 2 Matter of Brown, 21 Wemlell, 816. ^ Decker v. Bryant, 7 Barbour, 182. 3 Kingsland y. Cowman, 5 Hill (N. Y.), ^ Kennon v. Kvans, 36 Georgia, 89; e08. Irvin v. Howard, 37 Ibid. 18. [86] CHAP, v.] AFFroAVIT FOR ATTACHMENT. § 102 and if any one of them be true, it will sustain the attachment, though all the others be untrue.^ An affidavit alleging one or the otlier of two or more distinct grounds, would be bad, because of the impossibility of determining which is relied on to sustain the attachment. Thus, under a statute which authorized an attachment — 1. Where the defendant is about to remove his effects ; 2. Where he is about to remove privately out of the county ; and 3. When he absconds or conceals himself, so that the ordinar}^ process of law cannot be served on him — an attach- ment was obtained, on an affidavit that the defendant " was about to remove from and without the limits, or so absconds and conceals himself, that the ordinary process of law cannot be served on him ; " and it was set aside. The first member of the oath was plainly not within the statute, and though the latter was, yet it was rendered inefficient by its connection with the former, through the disjunctive conjunction or, whereby it became uncertain which state of facts existed.^ Subsequently the same court, in a similar case, so ruled again, and intimated that they would consider an affidavit, in the disjunctive, as bad, although either of the facts sworn to might be sufficient.^ § 102. Let it be observed, however, that where the disjunctive or is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same results, the construction just men- tioned would be inapplicable. For instance, where the statute authorized an attachment when " the defendant absconds, or secretes himself," it was considered that, from the difficulty of determining which was the fact, the language comprised but one ground, and the disjunctive or did not render the affidavit uncer- 1 McCollem 17. White, 23 Indiana, 43. Jewel v. Howe, 3 Watts, 144; Wray y. 2 Ha>fO()d V. Hunter, 1 JMcCnrd, 511. Gilmore, 1 Miles, 75; Sliipp i'. Davis, See Barnard v. Sebre, 2 A. K. Marshall, Hardin, 65 ; Havvley v. Dehiias, 4 Caii- 151; Davis v. Edwards, Hardin, 342; fornia, 195; Rogers v. Ellis, 1 Handy, Bisliop V. I'ennerty, 46 Mississippi, 570; 48; 1 Disney, 1; People v. Recorder, 6 Dickenson ;;. Cowley, 15 Kansas, 209. Hill (N. Y.), 429; Stacy v. Siichton, 9 Recent decisions of tlie Court of Appeals Iowa, 399; Hopkins v. Nichols, 22 Texas, of Kentucky hold that a statement in the 200 ; Garner v. Burleson, 20 Ihid. 348 ; alternative of two j^rounds of attacliment Culbertson v. Cabeen, 29 Ibid. 247; Guile is not vicious. Wood v. Wells, 2 Bush, v. McNanny, 14 Minnesota, 520 ; Morri- 197 ; Hardy v. Trabue, 4 lljid. 044. son v. Fake, 1 Pinney, 133. >* Devall V. Taylor, Cheves, 5. See [87] § 102 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. tain.^ " It is," said the court, " often difficult, if not imprac- ticable, for the creditor to ascertain whether his debtor absconds or secretes himself: lie has to rely frequently upon such infor- mation as his family or friends will iL;ive him, which cannot always be confided in : hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevent failures, from having mis- taken the cause why the debtor is liable to the remedy, the law lias very properly provided for its issuance in the alternative." ^ Under a similar statute, the same view has been expressed in Tennessee. The language of the statute was, " so absconds or conceals himself that the ordinary process of law cannot be served on him." It was contended that "absconds" constituted one cause, and " conceals " another ; but the court did not so hold. " For," said the court, " although the two words are con- nected by or instead of and^ yet the sense of the sentence shows that or is used copulatively, constituting both ' absconds ' and ' conceals,' or either of them, a sufficient cause for suing out the attachment. In the nature of things, a plaintiff cannot tell whether a party absconds or conceals himself. He may suppose he absconds, when he only conceals himself, and vice versa. To compel him to swear that the party is doing the one only, would involve the plaintiff in endless difficulty. Besides the question of conscience that must always exist with the party about to take the oath, he would be constantly in danger of having his attachment abated on the plea of the defendant, who, though he might not have absconded, was nevertheless concealed, or, if not concealing himself, may have been absconding. We think, there- fore, that the words ' so absconds or conceals himself ' constitute but one cause." ^ And so, in Mississippi, under a statute allow- ing attachment, on affidavit that the defendant " hath removed, or is removing out of the State, or so absconds, or privately con- ceals himself, that the ordinary process of law cannot be served on him." The affidavit was in the very words of the statute, and was objected to, because in the alternative ; but the court held it sufficient ; considering that the material point required by the statute was, that the ordinary process could not be served, ' Jolinson V. Hale, 3 Stewart & Porter, See Goss v. Gowing, 5 Kichardson, 477 ; 331. Commercial Bank v. UUman, 10 Smedes 2 Cannon v. Logan, 5 Porter, 77. See & Marsliall, 411; Hopkins v. Nichols, 22 Wood V. Wells, 2 Busli, 197. Texas, 206. 8 Conrad v. McGee, 9 Yerger, 428. [88] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 103 and that the plaintiff might well know that, without knowing whether the defendant had removed, absconded, or concealed himself.^ And in New York, an affidavit that the defendant " had secretl}'- departed from this State, with intent to defraud his creditors, or to avoid the service of civil process, or keeps himself concealed therein with the like intent," was sustained.^ And in Wisconsin an affidavit was considered good, which alleged that the defendant " has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, with intent to defraud his creditors." ^ And so in Indiana, where the affi- davit was that the defendant " is about to sell, convey, or other- wise dispose of his property subject to execution, with the fraudulent intent to cheat, hinder, or delay his creditors." * And in Colorado an affidavit was sustained, which averred, in the words of the statute, that the defendant "is converting, or is about to convert, his property into money, or is otherwise about to dispose of his property, Avith the intent of placing it beyond the reach of the plaintiff." ^ But in Texas, an affidavit, in the words of the statute, that the defendant was " about to transfer or secrete, or has trans- ferred or secreted, his property," was considered bad, because " to transfer property, within the meaning of the statute, is to place it in the hands of another, under pretence of title ; " while " to secrete property, within the meaning of the statute, is to hide it, to put it where the officer of the law will not probably be able to find it ; " and the court, therefore, did not regard the two acts as phases of the same general fact.^ And so of an affi- davit alleging, under the same statute, that the defendant was " about to transfer or dispose of, or has transferred or disposed of his property." " § 103. While it is ever a safe rule to follow strictly the lan- guage of the statute, it is not always necessary. Qualifying words should not be omitted ; but the omission of words which 1 Bosbysliell v. Emanuel, 12 Smcdcs * Parsons v. Stockbridge, 42 Indiana, & Marsliall, 03. See Irvin v. Howard, 37 121. Georgia, 18. « McCraw v. Welch, 2 Colorado, 284. 2 Van Alstyne V. Erwine, 1 Kernan, ^ Hopkins v. Nichols, 22 Texas, 206; 331. Garner v. Burleson, 20 Ibid. 348; Cul- 3 Kienk v. Schwahn, 19 Wisconsin, bertson v. Cabeen, 29 Ibid. 247. Ill; Morrison v. Fake, 1 Pinney, 133. "> Carpenter v. Pridgen, 40 Texas, 32. [89] § 103 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. have not that character, while, by those remaining, the sense and scope of the hiw are fulfilled, will not vitiate the affidavit. Thus, Mhore it was required that the affidavit should state that the defendant is "justly indebted " to the plaintiff, it was consid- ered that "justly" was not intended to qualify " indebted," and that its omission from the affidavit was no material defect.^ So, 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 sura 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 liis creditors," it was held that the omission of the words " in some manner " did not vitiate the affidavit.^ 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 $300 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 1 Livengood v. Sliavv, 10 Missouri, ^ Ludlow v. Ramsey, 11 Wallace, 581. 273. See Kennedy v. Morrison, 31 Texas, * Drake v. Hager, 10 Iowa, 556. 207. Sed contra, Tliompson v. Towson, 1 ^ Hughes v. Martin, 1 Arkansas, 386; Harris & McIIenry, 501. Huglies v. Stinnett, 9 Ibid. 211. 2 Gutman v. Virginia Iron Co., 5 West ^ Grover v. Buck, 31; Michigan, 519. Virginia, 22. [90] CHAP, v.] AFFIDAVIT FOR ATTACHISIENT. § 104 omission to aver that the debt was " due upon contract " was fatal, though from the terms of the ajBSdavit 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 clue? § 104. Uncertainty in the affidavit will vitiate it. Thus, where the law required the affidavit to show that the cause of action was founded on contract, and the plaintiff did not swear posi- tivel}' to a contract, but stated facts, from which perhaps a jury 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 uncertaint}^ : " A., plaintiff, states that B., the defendant, is bond fide indebted to him in the sum of 82,053.37 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 il,500, and also for the sum of $2,223.10, 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 1 Boweny. Slocum,-17 Wisconsin, 181. Cbandler, 29; 2 Pinney, 97. See Rob- ■^ Trowbridge v. Sickler, 42 Wiscon- inson v. Burton, 5 Kiinsas, 293. sin, 417. * Friedlander v. Myers, 2 Louisiana ^ Jacoby V. Gogell, 5 Sergeant & Annual, 920. Rawle, 450; Quarles v. Robinson, 1 ^ Munroe v. Cocke, 2 Cranch C. C. 465. [91] i> § 105 a AFFIDAVIT FOR ATTACHMENT. [CHAP. V. to remove, convey, or dispose of lils property or effects, so as to liinder or delay his creditor," an affidavit was held vicious for uncertainty, which averred that the plaintiff " lias good reason to believe, and does believe, that the defendant is about fraudu- lently to remove his propert}', convey or dispose of the same, so as to hinder or delay this deponent." ^ § 104 a. The leaving of a blank in the part of an affidavit M-hich 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.^ § 105. Surplusage in an affidavit, not inconsistent with the substantial averment required by statute, wull not vitiate it. Thus, where the person making the affidavit stated sundry acts of tlie 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 de- fendant resided out of the State of Louisiana, having acquired no legal residence in the State ; " it was held, that 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.^ § 105 a. An affidavit setting forth conjunctively two grounds of attachment, inconsistent with each other, would probably be considered bad ; but not so where they were not inconsistent. Thus, where the affidavit alleged that the defendant '' has as- signed and disposed of his property with intent to delay and defraud his creditors, and that he is about to assign and dispose 1 Merrill v. Low, 1 Pinney, 221. 33 Mississippi, 190; Auter v. Steamboat 2 Black V. Scanlon, 48 Georgia, 12. J. Jacobs, 34 Ibid. 269. 3 Spear v. King, 6 Smedes & Marshall, * Farley v. Farior,6 Louisiana Annual, 276. See Van Kirk v. Wilds, 11 Barbour, 725. 620; Edwards ;;. Flatboat Blacksmith, & Emmett y. Yeigh, 12 Ohio State, 335. [92] CHAP. Y.] AFFIDAVIT FOR ATTACHHIENT. § 106 of his property with like intent;" it was held not to be objection- able for inconsistency ; since it might be true that the defendant had so assigned and disposed of part of his property, and was / ^ also about so to assign and dispose of another part.^ y^ § 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 believes,^ the fact to exist. And under a statute authorizing an attachment " where there is good reason to believe " the exist- ence 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."* 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 1 Nelson i\ Munch, 23 Minnesota, 229. 4 Stevenson v. Robbins, 5 Missouri, '^ Deupree v. Kisenafh, y Georgia, 598 ; 18. Ex ]>arle Haynes, 18 Wendell, Oil ; Cad- ^ Cobb v. Force, 6 Alabama, 468. well V. Colgate, 7 Barbour, 268 ; J3yer v. '^ Bergli r. Jayne, 7 Martin, n. s. 609. Flint, 21 Illinois, 8U; Archer v. Clafiin, ~> Stadler i^. Parnilee, lU Iowa, 23. 31 Ibid. 306; Williams v. xMartin, 1 Met- ^ Kittenhouse y. Hannan, 7 West Vir- calfe (Ky.), 42; Wilson v, Arnold, 5 ginia, 380. Michigan, 98. ' Jones v. Leake, 11 Smedes & Mar- 3 Greene v. Tripp, 11 Rhode Island, sliall, 591. 424. [93] § 107 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. " sliowhig "' the existence of a certain fact, it was held, that an ntfitlavit of such fact, as the afliant " verily believed," was good ; which was, in effect, to decide that the party's belief was a suffi- cient '' showiug," to fill the terms of the statute.^ Under a statute requiring an affidavit " showing," among other things, " the amount which the affiant believes the plaintiff ought to recover," an affidavit stating positivel}' 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.^ § 107. While it is in all cases advisable to follow the exact lan- guage of the statute, yet if the words of the affidavit are in sub- stantial compliance with the terms of, or necessarily and properly imply the case provided for by, the statute, it will be sufficient.^ Thus, Avhere 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 credit- ors ; " an affidavit alleging that the defendant was " about to convey his property so as to hinder or dela}' 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.*" W^liere 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 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 himself 1 Trew V. Gaskill, 10 InJiana, 265; « Wiltse v. Stearns, 13 Iowa, 282. McNamara v. Ellis, 14 Ibid. 516. ' Wallis i-. Wallace, 6 Howard (Mi.), '^ Sleet V. Williams, 21 Uliio State, 82. 254. 3 Van Kirk v. Wilds, 11 Barbour, 520. * Lee i-. Peters, 1 Smedes & Marshall, * Curtis V. Settle, 7 Missouri, 452. 603. 5 Graham v. HuH', 8 Alabama, 171. [94] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 107 or his property beyond the limits of the State;" and suit was Lrouo-ht ao-ainst the owner and master of a steamboat, alleging that he was " about to remove the said steamboat beyond the limits ot this State ; " it was considered that, however defective the alle- gation might be, in stating the defendant to be about to remove 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 necessarily 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," a statement "that the defendant will remove himself and his effects 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.2 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, becavise when a partnership is spoken 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 tliat the defendant was 1 Runyan v. Morgan, 7 Humphreys, 210. » Cliambers v. Sloan, I'J Georgia, 84. '^ Dandridge v. Stevens, 12 Snaedes & * Ware v. Todd, 1 Alabama, 199. Marsliall, 723. [95] § 107 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. "really indebted " to him in a certain sum, it was held, that the expression conveyed tiie idea of a debt actually due and payable, and was sufficient.^ Where, in enumerating the cases in wliich an attachment 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 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 with the law.* Where an attachment mighty issue when "• any person hath removed, oris 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 j)roperty and effects," was adjudged sufficient.^ An allegation that the defendant "is absconding," was held to be sufficient under an act using the words " he absconds ; " and an allegation " that they are removing their propert}^ to be removed 1 Parmele v. Johnston, 15 Louisiana, the affiihivit is made. Cross v. McMaken, 429. Where the law requirefl tlie affi- 17 Michigan, 511. davit to state " that the defendant is '^ Sawyer v. Arnold, 1 Louisiana An- indebted to the plaintiff, anil specifying nual, 315. the amount of such indebtedness, as near ^ Commercial Bank v. UUman, 10 as may be, over and above all legal otf- Smedes & Marshall, 411. sets, and that tiie same is due upon con- * Mandel v. Peet, 18 Arkansas, 236. tract, express or implied, or upon judg- 5 Uank of Alabama v. Berry, 2 Hura- ment; " the Supreme Court of Michigan phreys, 443. held, that the words /s due refer not only •» Boyd v. Buckingham, 10 Hum- to the existence of tiie indebtedness, but phreys, 434. to its being due and payable at the time [96] CHAP. Y.] AFFIDAVIT FOR ATTACHMENT. § 108 beyond the limits of tlie 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 into 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 law.^ Under a statute authorizing an attachment " when the debtor is about fraudulently to dispose of his property," an affi- davit which substituted " effects " ^ 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 any of his property with intent to defraud liis creditors," and the affidavit was in 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 1 Kennon v. Evans. 36 Georgia, 89. ^ Miller v. Munson, 34 Wisconsin, 579. ^ Frere v. Ferret, 25 Louisiana Annual, *^ Mantz v. Hendley, 2 Hening & Mun- 500. ford, 308. 8 Free v. Hukill, 44 Alabama, 197. "^ Levy v. Millman, 7 Georgia, 167 ; * Hafley v. Patterson, 47 Alabama, Brown v. McCluskey, 26 Ibid. 577. 271. 7 [97] §108 AFFIDAVIT FOE ATTACHMENT. [CHAP. V. 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 ground of attachment was, that " the defendant is about to remove his projDcrty out of the State, and that thereby the plaintiff 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 de- fendant, that "the ordinar}^ process of law cannot be served on him." ^ So, where the statute gave an attachment when " the debtor is not resident in the State," and the affidavit was that the defendant " is not at this time within the State." ^ So, an af- fidavit " 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 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 af- fidavit 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 indefinitel}^ 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 attachment " when any person shall be an inhabitant of any State, territory, or country, without the limits of this State, so that he cannot be personally served with process," an affidavit was held bad, which averred the inhabitancy in another State, but omitted the averment as to the impossibility of j)ersonal ser- vice of process.^ 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 1 Wallis V. Murphy, 2 Stewart, 15. ^ New Orleans r. Garland, 11 Louisi- - Napper v. Noland, 9 Porter, 218. ana Annual, 438. 3 Cro.xall V. Hutehings, 7 Halsteil, 84. *' Thompson v. Chambers, 12 Smedes * Millaudonr.roucher,8 Louisiana, 582. & Marshall, 488. [08] CHAP, v.] AFFIDAVIT FOE. ATTACHMENT. § 108 defective.^ 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 absconding 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.'5 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.^ 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." '' Where the statute required the affidavit to state that the defend- ant " 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 immediately preceding the date of the affidavit," and the affidavit 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 indefi- nite and insufficient, as clearly implying that some of them do reside there.'^ Where the statutor\^ 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 this State, so that the process of this court cannot be served upon him," was ' Love y. Young, G9 North Carolina, ^ Hopkins i'. Suttles, Hardin, 05, note. 65. "^ Davis v. Edwards, Ilardin, -'342. 2 M'Culloch V. Foster, 4 Yc-rger, 162. "? Poage v. Poage, 3 Dana, 579. 3 Bennett v. Avant, 2 Sneed, 152. 8 Drew v. Dcquindre, 2 Douglass, 93. * Lewis V. Uutler, Kentucky Deci- ^ Powers v. Hurst, o Blackford, 229. sions (Sneed), 290. [99] § 108 a AFFIDAVIT FOR ATTACHMENT. [CHAP. V. held insufficient.^ Under the same statute, an affidavit that the defendant " is not a resident of this State," was liekl bad.^ "Where the statute authorized an attacliment where "a debtor is on the eve of leaving the State for ever," 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.3 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 j)roperty," 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.° And so, under the same statute, Avhere 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 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- 1 Lane v. Fellows, 1 Missouri, 251. * Allen v. Fleming, 14 Richardson, '- Alexander v. Haden, 2 Missouri, 187. 196. ^ Reding i'. Ridge, 14 Louisiana An- ^ Jackson v. Burke, 4 Heiskell, 610. nual, 36. ^ McHaney v. Cawthorn, 4 Heiskell, 508. [100] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 108 a 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 b}' 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 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 about 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 1 Myers v. Farrell, 47 Mississippi, 281. [101] § 111 AFFIDAVIT FOR ATTACHMENT. [CHAP. V. intent, — an act wliich, though not yet consummated, is presently to be (lone. . . . 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 tliat 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 import 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 will dispose of his property in order to defraud his creditors, is not sufficient to authorize the issuance of an attachment."^ § 109. The fact that two affidavits of the same import appear 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 and uniform had been the practice to the contrary, that it ought 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, Avho 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 la]3se 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 1 Jackson v. Burke, 4 Heiskell, 610. ■* Hamilton y. Knight, 1 Blackford, 25. - "VVliarton v. Conger, 9 Smedes & * Creagh v. Delane, 1 Nott & McCord, Marshall, 510. 189 ; Wright v. Ragland, 18 Texas, 289. [102] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 112 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.^ But if there be such delay as fairly to induce the pre- sumption that the process of the court is abused, or used'oppres- sively, or that the ground 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 war- rant 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 imine- diately preceding the time of making application for such attach- ment,'" 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 preced- ing the time of making such affidavit^ ^ Under each act it was decided that the affidavit must be made on the same 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 in 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." But it is 1 Graham v. Bradbury, 7 Missouri, ^ Lowry v. Stowe, 7 Porter, 483 ; 281. See O'Neil v. N. Y. & S. P. Mining Jones v. Pope, 6 Alabama, 154 ; Burt v. Co., 3 Nevada, 141 ; Campbell v. Wilson, Parish, 9 Ibid. 211 ; Kirkman v. Patton, 6 Texas, 379; Wright v. Ragland, 18 19 Ibid. 32; Garmon y. Barringer, 2 Dev- Ibid. 289. ereux & Battle, 502. 2 McClanahan v. Brack, 4G Missis- "^ Garmon v. Barringer, 2 Devereux & sippi, 246 ; Campbell v. Wilson, 6 Texas, Battle, 502 ; Stoney v. McNeill, Harper, 379 ; Wright v. Ilaglaiid, 18 Ibid. 289. 156 ; Watson v. McAlHster, 7 Martin, 3 Drew V. Dequindre, 2 Douglass, 93. 308 ; Enders v. Steamer Henry Clay, 8 * Wilson V. Arnold, 5 Michigan, 98; Robinson (La.;, 30; Symons y. Northern, Fessenden v. Hill, 6 Ibid. 242. 4 Jones, 241 ; Burt v. Parish, 9 Alabama, 5 Watson V. McAllister, 7 Martin, 368. 211; Bishop v. Fennerty, 46 Mississippi, [103] § 112 a AFFIDAVIT FOR ATTACHMENT. [CHAP. V. 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.* § 112 a. In reference to the matter of the defendant's appear- ance 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 w-as 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- 570; Woodruff r. Sanders, 18 Wisconsin, were improperly issued." Taylor v. 161 ; Blackwood v. Jones, 27 Ibid. 498 ; Smith, 17 B. Monroe, 536. Fairfield v. Madison Man. Co., 38 Ibid. i Bonner i'. Brown, 10 Louisiana An- 346; McDonald V. Fist, 60 Missouri, 172. nual, 3-34; Johnson v. Buell, 26 Illinois, But in Kentucky the Court of Appeals 66 ; Blackwood v. Jones, 27 Wisconsin, held, that a motion to discharge the at- 498 ; Crary v. Barber, 1 Colorado, 172. tachment was well made during the prog- Sed contra, Whiting v. Budd, 5 Missouri, ress of the trial, and after most of the 443 ; Evans r. King, 7 Ibid. 411. testimony had been given to the jury ; '-' Anderson v. Coburn, 27 Wisconsin, and remarked, " We do not see how a 558. motion of this sort could well come too ^ Oredr v. Clough, 52 Missouri, 55. late, as the court, even upon final deci- * Ryon v. Bean, 2 Metcalfe (Ky.), 137. sion, should vacate the attachment if it [104] CHAP, v.] AFFIDAVIT FOR ATTACHMENT. § 113 tilted 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 contended 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 judg- ment 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- tains 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 may be stated, it may be amended. But if it in no way refers to the parties, 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 the 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.'' 1 Inman v. Allport, 65 Illinois, 540. Bonds, post, § 147; Palmer v. Bosher, 71 2 Ante, § 87. North Carolina, 291. 3 Booth V. Rees, 20 Illinois, 45 ; Moore ^ Graves v. Cole, 1 G. Greene, 405. V. Mauck, 7U Ibid. 3'Jl. « Hall v. Brazelton, 40 Alabama, 40G ; * Bunn V. Pritchard, 6 Iowa, 50 ; Watt 40 Ibid. 359. V. Carnes, 4 Ileiskell, 532. See analo- '' Greenvault v. F. & M. Bank, 2 gous cases in regard to Attachment Douglass, 498. See McReynolds v. Neal, y Humphreys, 12. [105] § 113 AFFIDAVIT FOE, ATTACHMENT. [CHAP. V. If when the attachment issues the affidavit be witliout date and not sworn to, the othcer issuing it has no authority after- wards to amend it by allowing the party to sign and swear to it, and inserting a date, without issuing a new writ.^ 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 ^ BgU v. Hall, 2 Duvall, 288. Pope V. Hibernia Ins. Co., 24 Ohio State, ■» Crouch v. Crouch, 9 Iowa, 269 ; 481; Union C. M. Co. v. Raht, 16 New Wadsworth r. Cheeny, 10 Ibid. 257 ; Rob- York Supreme Ct. 208. inson v. Burton, 5 Kansas, 293. - Whitney v. Brunette, 15 Wisconsin, 61. [106] CHAP. YI.] ATTACHMENT BONDS. § 115 CHAPTER VI. attach:ment bonds. § 114. In many of the States it is required that a plaintiff, before obtaining an attachment, shall 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. § 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, who might be amply able to discharge the damages recovered, although no bond was executed at all ? " -5 ' Bank of Alabama v. Fitzpatrick, 4 venson i". Robbins, 5 Missouri, 18; Van Humphreys, 311 ; Didier v. Galloway, 3 Loon »•. Lyons, 61 New York, 22 ; Tiffany Arkansas! 001 ; Kellogg v. Miller, 6 Ibid. i-. Lord, 65 Ibid. 310. 468 : Davis ;;. Marshall, 14 Barbour, 96 ; - Alexander i-. Pardue, 30 Arkansas, Kelly V. Arclier, 48 Ibid. 68 ; Benedict v. 359. Bray, 2 California, 251 ; Lewis y. Butler, '•' Hucheson v. Ross, 2 A. K. Marshall, Kentucky Decisions (Sneed), 290; Ste- 349. [107] § 116 a ATTACHMENT BONDS. [CHAP. VI. § 116. In ]\[ississippi, the statute declares that an attachment issued ^Yithout bond is void, and shall be dismissed ; and the courts of that state have carried out tlie law rigidly; holding that the attachment is absolutely void ; ^ that the Avant of a sufficient bond cannot be cured by fiUng a proper one after the suit is brought ; ^ that the absence of a bond is not remedied by the ap- pearance of the defendant and his pleading to the action ; ^ and that a judgment against a garnishee who has answered under an attachment issued without bond is void,*^ and no bar to a subse- quent action against him by the attachment 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 ever}^ 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.' In Ohio, where the statute provides that " the order of attach- ment shall not be issued by the clerk until there has been exe- cuted in his office an undertaking," &c., it was held, in an action where title to real estate obtained through an attachment issued without such undertaking having been filed was brought in con- flict with a title obtained through a sale under execution, that the attachment was not void for want of the filing of the under- taking.^ § 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.'-^ 1 Ford V. Hurd, 4 Smedes & Marshall, 5 Pord v. Hurd, 4 Sraedes & Marshall, 683. G83. - Houston V. Belcher, 12 Smedes & '^ Martin v. Tliompson, 3 Bibb, 252; Marshall, 514. Samuel v. Brito, 3 A. K. Marshall, 317. 3 Tyson v. Hamer, 2 Howard (Mi.), 1 Caraberford v. Hall, 3 McCord, 345. 669. 8 OTarrell v. Stockman, 19 Ohio State, * Ford V. Woodward, 2 Smedes & Mar- 296. shall, 260. s^Snelling r. Bryce, 41 Georgia, 513. [108] CHAP. VI.] ATTACHMENT BONDS. § 120 § 117. But thougli an attachment sued out without sufficient bond having been taken, should be considered absolutely void as to the defendant, yet it Avill, 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, on writ of error by the defendant, held the attachment void in such case.^ 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 suffi- cient.^ § 119. As in the case of the affidavit, the bond must aj)pear 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 viti- ate 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 acceptance, though not signed by the clerk, and the Avrit re- 1 Banta v. Reynolds, 3 B. Monroe, 80 ; ^ Uays v. Gorby, 3 Iowa, 203 ; Ells- Owens V. Starr, 2 Littell, 230. worth v. jMoore, 5 Ibid. 486. 2 Post, § 411 a; Barkeloo v. Randall, ^ Mandel v. Peet, 18 Arkansas, 236; 4 Blackford, 476. Griffith v. Robinson, 19 Texas, 219. ' Home V. Mitchell, 7 Bush, 131. ^ Pearson r. Gayle, 11 Alabama, 278. * Cousins f. Brashear, 1 Blackford, 85. ^ Levi v. Darling, 28 Indiana, 497. [1U9] § 121 a ATTACHMENT BONDS. [CHAP. VI. cite the filing of the bond.^ And his approval is but prima facie evidence of the sufiiciencv of the sureties, subject to be vev throw n.- If a person holding the office of clerk of a court institute a suit by attachment in that court, the approval of the bond by his deputy is of no value ; the bond is a nullity in sustaining the attachment.-^ § 121. The bond must be actuaUi/ executed and delivered before the writ issues. It will not answer for the party to prepare what may be made into the required instrument, and leave it incom- plete. Therefore, where it appeared that the plaintiff, before the writ issued, filed with the clerk a half sheet of paper, upon which he and another person had signed their names, bttt that the paper was otherwise blank, it was decided that, as the ceremonies necessary to a bond consist of ivriting, sealing, and deliven/, none of which existed in this case, there was no bond, and the wiit was quashed.^ So where the bond was in every respect in con- formity to law, except that it was not sealed.^ § 121 a. When a bond is executed by the plaintiff', and deliv- ered to the officer who is to issue the attachment, no agreement between them as to any condition subsequent, upon which the bond was to become unavailable in the case, can have any effect upon the right of the attachment defendant to recover thereon. Thus, where the plaintiff, at the time of obtaining an attachment, executed a bond and left it with the officer, with the condition and agreement that the officer might use it as the basis of an attachment in case the plaintiff failed to produce a decision of the Supreme Court that such bond was unnecessary ; and that it was not to be so used unless the plaintiff" so failed ; and within twenty-four hours thereafter the officer issued the attachment ; and afterwards the plaintiff produced to him a decision of the Supreme Court to the effect stipulated : whereupon the officer delivered the bond up to the plaintift'. a\1io destroyed it : and afterwards the attachment defendant sued upon it : it was held, 1 Howard r. Oppenheimer, io Marv- 125 ; Perminter r. McDauiel, 1 Hill land, 350. ' (S. C), 267. •- Blaney v. Findley, 2 Blackford, 338. ^ State v. Thompson. 49 Missouri, 1S8 ; 3 Owens V. Johns, 59 Missouri, 80. State v. Chamberlin, 54 Ibid. 338. < Bord V. Bovd, 2 Xott & McCord, '[110] CHAP. VI.] ATTACHJIEyT BONDS. § 123 that the defendant's right of action upon it ^vas not affected by the agreement between the plaintiff and the officer.^ § 121 h. It wouhl hardly seem probable that, under any system of attachment laws, the presence in which the bond is executed could be considered material ; but it is so regarded in Kentucky, under a statute declaring that " the order of attachment shall not Ije issued by the clerk until there has been executed, in his office, a bond to the effect," &c. It \vas held, that unless the bond was executed m the 'presence of the clerk, it w^as unauthor- ized, and that the order of attachment was improperly issued.^ § 122. If the bond be actually executed, according to the statutory requirement, but before its return into court it be acci- dentally destroyed, the failure to return it will not be a cause for quashing the attachment, though the statute require it to be returned.^ Nor will the failure of the officer to return it into court authorize the attachment to be dissolved, if no blame be chargeable to the plaintiff. '4 § 123. If it appear, from the date or recitals in the bond, that it was not executed until after the writ issued, it will be fatal to the attachment, where its execution, as is usually the case, is a condition precedent to the issue of the writ.'^ Therefore, where the attachment and bond bore date on the same day, and the bond recited that on that day the plaintiff had first issued or ob- tained the attachment, the attachment was quashed.^ But where, under similar circumstances and similar statutory requirements, the bond recited that the plaintiffs " have this day sued out an attachment," it was held, on a motion to quash, that though the issue of the writ before the giving of the bond would be fatal, yet that the recital of the bond was not evidence of the fact. " The recital," say the court, " was evidently intended to iden- tify the case in which the Ijond was given, and not to indicate its order, in point of time, in the proceedings. Nothing more was 1 Bennett v. Brown, 20 New York, 99. sissippi, G67 ; State Bank v. Ilinton, 1 2 Home V. Mitchell, 7 Bush, 131. Devereux, 397. 3 Wheeler v. Slavens, 13 Smedes & ' Oshorn v. Schiffer, 37 Texas, 434. Marshall, 623. '"' Hucheson v. Ross, 2 A. K. Marshall, i Bank of Augusta v. Conrey, 28 Mis- 349 ; Koot v. Monroe, 5 Blackford, 594. [Ill] §124 ATTACHMENT BONDS. [CHAP. VI. meant, or is necessarily to be inferred from it, than that it was intended as the bond required to be given in the case, wherein the phiintiffs had instituted proceedings, by filing their petition and making affidavit for tlie purpose of suing out an attachment ; not tliat the writ had actually been issued by the clerk already. That is not a necessary, nor, when it is considered that it would have involved the violation of duty by the clerk, is it a probable conclusion." ^ And so, where the condition of the bond required the plaintiff to prosecute to effect an attachment " granted," and the bond and the attachment were of the same date, the court considered it unnecessary to set forth in the bond that it was taken before granting the Avrit, but that would be presumed. " The object of the law," said the court, " was to prevent an at- tachment from being issued without giving the defendant the security afforded by the bond, and the least possible division of time is a sufficient priority. If the law has been substantially fulfilled, the court will not permit the object to be defeated, be- cause the phraseology of some part of the proceedings may not be critically correct." ^ But though the recital of a bond should indicate that the attachment had been previously obtained, it will not be sufficient to quash the writ, if it appear on inspection of the record that the writ was in fact subsequently issued. This, however, could not be shown by parol evidence.'^ § 124. The sufficiency of the bond to sustain the attachment may be questioned, either as to its terms, parties, or amount. If there be a bond, but not such as the law requires, it will be the same as if there were no bond, unless an amendment of it be authorized by statute."^ A substantial compliance with the stat- ute, however, seems to be in general sufficient.^ And if a word be omitted by mistake from the bond, and, by looking at the whole instrument and the statute under which it is given, it is apparent what word was intended to be inserted, the omitted 1 Wright V. Eagland, 18 Texas, 289. •* Bank of Alabama v. Fitzpatrick, 4 See McClanahan v. Brack, 46 Missis- Humphreys, 311 ; Houston v. Belcher, sippi, 246. 12 Smedes & Marshall, 514; Hisler v. 2 McKenzie i-. Buchan, 1 Nott & Mc- Carr, 34 California, 641 ; Kelly v. Archer, Cord, 205. 48 Barbour, 68. 3 Summers v. Glancey, 3 Blackford, 5 O'Neal y. Owens, 1 Haywood (N. C), 361; Reed I'. Bank of Kentucky, 5 Ibid. 362; Leach v. Thomas, 2 Nott & Mc- 227. Cord, 110. [11-2] CHAP. VI.] ATTACHMENT BONDS. § 127 word ma}' be supplied, and the contract read as if it had been ex- pressed, without first reforming it by supplying the omitted word.i But whatever objections the defendant may have to the bond should be presented before he pleads to the merits ; ^ unless the law authorize a new bond to be required, where the surety becomes insolvent after its execution. In that case, the fact may be shown after pleading to the merits.^ § 125. As to the Terms of the Bond. A statute requiring a bond in a stated penalty, with a specified condition, is not com- plied with by the execution of an unsealed stipulation ; * nor is it met by the execution of a covenant, by which the plaintiff and his security promise to pay to the defendant the amount of the penalty stated in the statute, or all damages and costs he may sustain by reason of the issue of the attachment.^ And if such an instrument be declared on as a bond with a condition, and a breach thereof be assigned, when it is produced on the trial the variance will be fatal.^ § 126. When a statute in one clause provides what shall be the condition of the bond, and in another sets forth the forin of the condition, the proper course is to follow the form, without regard to the language of the statute elsewhere.' Indeed, it has been decided, that if the bond follow the language of the statute instead of the form prescribed, when they are variant from each other, it will be void.'^ § 127. To state in the bond that the suit is brought in a court other than that in which it is brought, is a fatal error ; '^ as is like- wise an omission to name the court ; ^^ but a misrecital in a bond of the term of the court to which the attachment is returnable, does not vitiate it: the affidavit and the writ control the terms of the iustrument.i^ But where the bond recited the time Avhen the 1 Frankol I.'. Stern, 44 California, 168. man), 303; Lucky i-. Miller, 8 Yerger, •■! Hart V. Kanady, 33 Texas, 720. 90. 3 Ealer v. McAllister, 14 Louisiana 8 Mclntyre r. White, 5 Howard (Mi.), Annual, 821. 298 ; Amos v. AUnutt, 2 Smedes & Mar- * Van Loon v. Lyons, 61 New York, shall, 215; Proskey r. West, 8 Ibid. 711. 22 ; Tiffany v. Lord, 6-5 Ibid. 310. '■> Bonner v. Brown, 10 Louisiana An- ^ Iloman r. Brinckerhoff, 1 Dcnio, nual, 334. 184. 10 Lawrence v. Yeatman, 3 Illinois (2 6 Rochefeller v. Hoysradt, 2 Hill (N. Scainnion), 15. Y.), 610. ^^ Houston v. Belcher, 12 Smedes & '' Love V. Fairfield, 10 Illinois (5 Gil- Marsliall, 514. 8 [n3] § 131 ATTACHMENT BONDS. [CHAP. VI. court was to be held, as " the first Monday m June," without designating it as the next county court, it was considered defective, but amendable.^ And so, where the bond was dated on the 4th day of January, 1836, and recited the attachment as returnable " to the county court to be held on the third Monday of January, instant," while the attachment bore date the 4th of January, 1838, the bond was considered defective.- § 128. It is no objection to a bond that it is not dated, where a date is not required by statute to be named in it.^ § 129. An insufficient description of the parties, or tlie suit, will vitiate the bond. Thus, where the obligors acknowledge themselves bound, " conditioned that A. B. plaintiff in attach- ment against defendant will prosecute," &c., it was held, that the attachment could not be sustained.* § 130. While any substantial departure from a prescribed form, or omission from the instrument of terms required by the statute, will be fatal to the action, unless remediable by amendment, the addition of terms not required will not have that effect. Thus, where a bond contained all the requisite conditions, with the fur- ther one, " that the plaintiff shall prosecute his attachment with effect at the court to which it is returnable ; " it was held, that this did not authorize the attachment to be dismissed.^ So where, in addition to the legally required terms, the clerk inserted in the bond the words " shall, moreover, abide by and perform such orders and decrees as the court may make in the cause ; " these words were held void, and were rejected as surplusage.^ So, where the bond was required to be made to the State of Arkan- sas, and a bond was made to that State, " for the use and benefit of the defendant ; " those words were treated as surplusage, not affecting the validity of the bond." § 131. As to the Parties to the Bond. If it be required that the bond be given by the plaintiff, and no provision exist for its being 1 Planters & Merchants' Bank v. An- '" Kalin v. Herman, 3 Georgia, 26G. drews, 8 Porter, 404. 6 Ranning v. Reeves, 2 Tennessee 2 Lowry v. Stowe, 7 Porter, 483. Ch'y, 263. 3 Plunipton V. Cook, 2 A. K. Mar- '^ Steamboat Napoleon v. Etter, 6 shall, 4.50. Arkansas, 108. 4 Schrimpf v. McArdle, 13 Texas, 368. ' [114] CHAP. VI.] ATTACHMENT BONDS. § 132 given by any other person, a bond executed by a stranger to the suit will be invalid. This was so held, where the statute declared that no writ of attachment should issue " before the jilaintiff has given bond ; " ^ and also under a statute requiring bond to be taken of " the party for whom the attachment issued." ^ This rule, however, is to be applied within its reason, and not arbitra- rily and literall}^ without regard to circumstances. Therefore, where bond was required to be taken from " the party plaintiff," a bond executed by one to whose use the suit was brought, was considered as within the meaning of the statute.^ And so, under a statute providing that " the creditor shall likewise file with the clerk a bond to the defendant with sufficient security," a bond was signed in the plaintiff's name by an agent having no author- ity therefor, and by competent sureties ; and it was held suffi- cient, though not the act of the plaintiff, because the reason of the law was satisfied by the sufficiency of the security."^ But where, under a law requiring bond to be taken of " the party for whom the attachment issued," and an attorney at law executed the bond in his own name, conditioned that he should pay and satisfy all costs which should be awarded to the defendant, in case he should be cast, &c. ; the bond Avas held bad, and the attach- ment set aside. ° § 132. Though the plaintiff is usually required to execute the bond, j^et as that might often be impraeticable, it is generally pro- vided that it may be done by his agent, attorney, or other person. 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 capacit3% 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 signing 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 1 Myers v. Lewis, 1 McMullan, 54. ■* Taylor v. Ricards, 9 Arkansas, 378. - Mantz V. liendley, 2 Ilening & Mun- ^ Mantz v. Hendley, '2 Hening & Mun- ford, 308. ford, 308. 3 Grand Gulf R. R. & B. Co. v. Con- « Trowbridge v. Weir, 6 Louisiana ger, Smedes & Marshall, 505 ; Murray Annual, 706. V. Cone, 8 Porter, 250. [115] § 133 ATTACHMENT BONDS. [CHAP. VI. 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 col- lection of the debt, and is embraced in the general power to make the collection." But the same court refused to extend this doc- trine 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 compli- ance with the law : but that a bond executed by the plaintiff's agent in his own name, without describing himself as agent, though he was so described in the affidavit, was fatally defective.^ § 183, 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 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 ; ^ 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 1 Wetmore v. DafBn, 5 Louisiana An- " Wood v. Squires, 28 Missouri, 528. nual, 49G. ^ Alford v. Johnson, 9 Porter, 320 ; 2 Dillon V. Watkins, 2 Speers, 445 ; Messner v. Hutchins, 17 Texas, 597 ; Walbridge v. Spalding, 1 Douglass, 451; Wright v. Smith, 19 Ibid. 297. Stewart v. Katz, 30 Maryland, 334. ^ Lindner v. Aaron, 5 Ploward (Mi.), 3 Frost V. Cook, 7 Howard (Mi.), 357; 581; Spear v. King, G Smedes & Mar- Page t'. Ford, 2 Smedcs & Marshall, 26G; shall, 276 ; Jackson v. Stanley, 2 Ala- Clanton u. Laird, 12 Ibid. 568. bania, 326; Goddard v. Cunningham, 6 4 Conklin v. Goldsmith, 5 Florida, 280. Iowa, 400 ; Wright v. Smith, 19 Te.xas, 5 Simpson r. Knight, 12 Florida, 144. 297; Messner v. Lewis, 20 Ibid. 221; 6 Work v. Titus, 12 Florida, 628. McDonald v. Fist, 53 Missouri, 843. [116] CHAP. VI.] ATTACHMENT BONDS. § 134 a 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 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 sure t}" 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 1 Lindner v. Aaron, 5 Howard (Mi.), ■* Dove v. Martin, 23 Mississippi, 588. 581. 5 Bank of Augusta v. Conrey, 28 Mis- ^ Dove V. Martin, 23 Mississippi, 588. sissippi, 6(J7. 3 Grove v. Harvey, 12 Robinson (La.), *' Mandel v. Peet, 18 Arkansas, 236. 221. ' Peiser v. Cushman, 13 Texas, 3U0. [117] §136 ATTACHMENT BONDS. [chap. VI. the singular number only may be extended to several persons or things, and words importing the plural number only may be ap- plied to one person or thing;" and held, that, as the object of the law is to afford indemnity to the defendant lor 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.^ § 13-1: h. Under a statute requiring the plaintiff to " enter into bond with two good and sufficient securities, payable to the de- fendant, 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- rit}^ 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.^ § 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.* § 136. 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 plaintiffs were 1 Elliott V. Stevens, 10 Iowa, 418. 2 May V. Gamble, 14 Florida, 467. 3 Lockett V. Neufville, 55 Georgia, 454. [118] * Jackson v. Stanley, 2 Alabama, 326. 5 Thatcher v. Goff, 13 Louisiana, 360; Dow V. Smith, 8 Georgia, 551. CHAP. VI.] ATTACHMENT BONDS. § 139 a partnership, and the sureties were also, and they signed in their respective partnership names, the undertaking was held suffi- cient.^ 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 the firm in his own name, was sufficient, where 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 the 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 as being 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.* § 138. As to the Amount of the Bond. This is in all cast's 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 greater sum than 1 Danforth v. Carter, 1 Iowa, 546 ; ^ Jones v. Anderson, 7 Leigh, 308. Churchill r. Fulliam, 8 Ibid. 45. * Birdsong v. McLaren, 8 Georgia, 2 Kyle V. Connelly, 3 Leigh, 710; 52L Wallis V. Wallace, Howard (Mi.), 254. [11 Bonner v. Brown, 10 Louisiana An- 368 ; Enders v. Steamer Henry Clay, 8 nual, 334 ; Johnson v. Buell, 26 Illinois, Robinson (La.), 30; Voorhees v. Hoag- 66. 2 Hill V. Rushing, 4 Alabama, 212. 1 Montana, 367. 3 Michael v. Thomas, 27 Indiana, 501 ; * Love v. Kidwell, 4 Blackford, 553. [134] CHAP. VI.] ATTACHMENT BONDS. § 170 with less apparent reason, has gone further, and decided that, though it appear that the pUxintiff 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, which 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 primd 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 ob- tained,'''' it is difficult to see upon what principle the plaintiff can be charged, when it is admitted tliat the attachment was right- fully obtained, but he failed to obtain a judgment, for technical 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 on an attachment bond, the condition of which was, " that the plaintiff 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- 1 Cox)J.Robinson,2R()bin8on(La.),313. ^ Cqx y. Robinson, 2 Robinson (La.), 2 Garretson v. Zacharie, 8 Martin, n. s. S13. 481. [135] §170 ATTACHMENT BONDS. [chap. VI. 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? AVe think that by the wrongful suing out of the attach- ment is meant, not the omissions, irregularities, or informalities which tlie officer issuing the process may have committed in its issuance, but that the party resorted to it without sufficient ground." ^ 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 wrongfully and without just cause, to constitute a breach of the condition, although the plaintiff may have abandoned the prose- cution of the suit.2 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 jier se subject the plaintiff to an action,^ and 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- 1 Sharpe v. Hunter, 16 Alabama, 765. Sefi Eaton v, Bartscherer, 5 Nebraska, 469. 2 Pettit V. Mercer, 8 B. Monroe, 51. In that State tliis case occurred : A. sued B. by attachment, and when tlie case had been several ye;'.rs pending, the office of the clerk of the court, and the record in the case, were destroyed by fire. Afterwards, the court ordered the plaintiff to supply the burnt record or submit to a nonsuit. lie could not sup- ply a complete record, and thereupon his [136] petition was dismissed, and his attach- ment " discharged without prejudice." He was then sued on the bond given to obtain the attachment. It was held, that the order of discharge of the attachment withoiil prejudice was, under the circum- stances, no evidence that the attachment was wrongful or even hurtful, but rather implied the contrary. Cooper v. Hill, 3 Bush, 219. 3 Smith V. Story, 4 Humplire3's, 169. * banning v. Reeves, 2 Tennessee Ch'y. "^63, CHAP. YI.] ATTACHMENT BONDS. § 170 a 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.^ 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 en- titled to an action on the undertaking ... if it shall appear that the proceedings were wrongful and oppressive." In an action of this kind, it appeared that the attachment suit was determined 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, notwith- standing 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 wrongful and op- pressive, though there had been judgment for the plaintiff \\\ 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 term 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 under- taking.^ § 170 a. When sued on tlie 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 tiiat act, he is confined to matters known to him when the attacliment was obtained, or may also show facts which were 1 State V. Beldsnieier, 56 Missouri, '^ Harper v. Keys, 43 Indiana, 220. 226. 3 Wilson v. Root, 43 Indiana, 486. [137] §171 ATTACHMENT BONDS. [CHAP. VI. not then known to liim, but which go to prove that the grounds alleged by him for obtaining it were in fact true. In an action for jualieious 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 justify the attachment. It was there held, at first, that the true issue in an action on the bond is, whether the plaintiff had suffi- cient cause for believing as he alleged ; and that if the belief ap- pears to have been without foundation or verit}^ 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 reasonable 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.^ § 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 sliow that a judgment was given against him, and his property used to satisfy 1 Post, § 732 a. 8 Burton v. Knapp, 14 Iowa, 196. ^ Wincliester v. Cox, 4 G. Greene, 121 ; * Post, § 409. Mahnke v. Damon, 3 Iowa, 107. ^ Vorse v. Phillips, 37 Iowa, 428. [138] CHAP. VI.] ATTACHMENT BONDS. § 173 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 original attachment is sued on his bond, lie 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 prima 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 plaintiff 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- volved, and only the wrong of the attachment is to be established, if the suit was terminated hy a finding in favor of the defendant, on an issue as to the truth of the facts 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.'^ 1 Hoshaw V. Iloshaw, 8 Blackford, < Sackett v. McCord, 23 Alabama, 851. 268. 5 llaver v. Webster, 3 Iowa, 502. 2 Reynolds v. Culbreath, 14 Alabama, « Mitchell v. Mattingly, 1 Metcalfe 581. (Ky.), 237. 8 Veiths V. Hagge, 8 Iowa, 168 ; Bur- ' Lockhart v. Woods. 38 Alabama, rows V. LehndorfE, Ibid. 96. 631; Tucker v. Adams, 62 Ibid. 254. [139] §174 ATTACHMENT BONDS. [CHAP. VI. But SO far as the amount of the claim of the attachment plain- tiff is involved in the question of the defentlant's recourse upon the bond, the judgment in the attaelnnent 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 on the part of the attachment plaintiff.^ § 173 a. In an action on the bond 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 property, 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.^ § 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 belief 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 re- cover 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 1 Gaddis v. Lord, 10 Iowa, 141, See ® Alexander v. Hutchison, 9 Alabama, post, § 744. 825 ; Donnell v. Jones, 13 Ibid. 490 ; 2 Drummond v. Stewart, 8 Iowa. 341. Metcalf v. Young, 43 Ibid. 643; Pettit v. 3 Brandon v. Allen, 28 Louisiana An- Mercer, 8 B. Monroe, 51. Dual, 60. s Metcalf v. Young, 43 Alabama, 643. < Churchill v. Abraham, 22 IlUnois, 455. [140] CHAP. VI.] ATTACHMENT BONDS. § 175 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 de- fendant, 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.^ In Mississippi, under a statute which authorized "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.^ 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 defend- 1 State V. Blackman, 51 Missouri, 319. « Cox v. Robinson, 2 Robinson (La.), ^ Kelly V. Beauchamp, 69 Missouri, 313; Horn v. Bayard, 11 Ibid. 259; 178. I'ettit V. Mercer, 8 B. Monroe, 51 ; Reid- 3 Donnell i-. Jones, 13 Alabama, 490 ; bar v. Berger, Ibid. KiU; McKeady v. Reidliar v. Berger, 8 B. Monroe, 100; Rogers, 1 Nebraska, 1-24. In Missouri State V. Tliomas, 19 Missouri, G13 ; Floyd it was lield, wliere a garnisbee was suin- V. Hamilton, 33 Alabama, 235; Campbell moned, tbat an element of damage recov- V. Cliumberlain, 10 Iowa, 337. erable was loss of interest on tlie debt of * Myers v. Farrell, 47 Mississippi, 281. tlie garnisbee to tbe defendant peiulente 5 Alexander v. Jacoby, 23 Ohio State, lite. State v. Beldsmeier, 50 Missouri, 858. 226. [141] § 176 ATTACHMENT BONDS. [CHAP. VI. ant should be liberally remunerated.^ But if the property at- tached 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 ob- taining testimony on a trial of the truth of the affidavit on which the attachment was issued ; ■* costs of suit to which the defend- ant has been subjected,^ as well in an appellate court as in that in which the suit was brought;^ and fees paid to counsel for ser- vices in the attachment suit "* but not fees to counsel for services in the action on the bond.^ In Texas the court refused to allow attorney's fees, because it regarded them in the nature of exem- plary damages, and because the defendant must have incurred that expense in defending the action, whether an attachment had been sued out or not.^ 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 sustained, 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 J]or 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 had 1 Offutt f. Edwards, 9 Robinson (La.), Annual, 620; Plielps v. Coggesliall, 13 90 ; Campbell v. Chamberlain, 10 Iowa, Ibid. 440 ; Accessory Transit Co. v. Mc- 337; Lawrence r. Hagerman, 56 Illinois, Cerren, Ibid. 214; Trapnall v. McAfee, 68. 3 Metcalfe (Ky. ), 34 ; Seay v. Greenwood, 2 Pinson v. Kirsh, 46 Texas, 26. 21 Alabama, 4'Jl ; Burton v. Smith, 49 3 Alexander v. Jacoby, 23 Ohio State, Il)id. 293 ; Vorse v. Phillips, 37 Iowa, 358. 428; Morris v. Price, 2 Blackford, 457. * Hayden v. Sample, 10 Missouri, 215. Sed contra, Heath v. Lent, 1 California, * Dunning v. Humphrey, 24 Wendell, 410. 31; Winsor v. Orcutt, 11 Paige, 578; * OfTutt «. Edwards, 9 Robinson (La.), Trapnall v. McAfee, 3 Metcalfe (Ky.), 90; Plumb v. Woodmansee, 34 Iowa, 34. 116 ; Vorse v. Phillips, 37 Ibid. 428. 6 Bennett v. Brown, 31 Barbour, 158; ^ Hughes v. Brooks, 36 Texas, 379. 20 New York, 99. '<» White v. Wyley, 17 Alabama, 167. 7 OffuU V. Edwards, 9 Robinson (La.), n Wilson v. Root, 43 Indiana, 486. See 90 ; Littlejolin v. Wilcox, 2 Louisiana Behrens v. McKenzie, 23 Iowa, 333. [142] CHAP. VI.] ATTACHMENT BONDS. § 178 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 the attachment bond ; if incurred in defending the cause of attachment alone, they are recoverable ; if incurred partly in defending the cause of action and partly in defending the cause of attachment, they are recoverable only so far as incurred in defence of the attach- ment.^ And so, in effect, in Ohio."^ § 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 intermed- dling with his property." * But the same court afterwards held, that no more than nominal damages can be recovered, where the defendant is not dispossessed.^ § 178. In Kentucky, it was determined that the plaintiff can only recover damages for the injury lie has sustained by being deprived of the use of his property, or its loss, destruction, or de- terioration.^ 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 or 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, and the plaintiff cannot recover in this action. If, ' Shultz V. Morrison, 3 Metcalfe (Ky.), * Dunning v. Humphrey, 24 Wendell, 98. 31. 2 Johnson v. Farmers' Bank, 4 Bush, * Groat v. Gillespie, 25 Wendell, 383. 283. 8 Pettit V. Mercer, 8 B. Monroe, 51. s Alexander v. Jacoby, 23 Ohio State, See Wallace v. Finberg, 46 Texas, 35. 858. [143] § 181 ATTACHMENT BONDS. [CHAP. VI. however, tlie propert}- is damaged, or if when returned it should be of less value than wlien seized, in consequence of the depreci- ation in price, or froui aii}' other cause, for such differeuce the plaintiff would be entitled to recover. But this rule, so far as it relates to tiie fall or depreciation of the price, would not be ap- plicable to every species of property. It would, however, 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 Mississippi, it was decided that where, between the levy and the dissolution of the attachment, the goods levied on had depre- ciated in market value, the defendant was entitled to recover the amount of the depreciation.^ And so in California.^ But such depreciation shoukl be specially pleaded.^ § 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, nothing can be recovered in an action on the bond, on account of depreciation in its value during the pendency of the attachment.^ § 180. In Louisiana the following case arose. Certain parties took out an attachment in February, 1842, against the Girard Bank, and seized certain choses in action, which, at the time, and for some months after, were worth in New Orleans |18,500. In August, 1812, the attachment plaintiffs, having obtained judg- ment, caused the choses in action to be sold by the sheriff, at a great sacrifice, for the sum of $9,140. 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 <|5,145 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 en- titled to recover the actual damage sustained.^ § 181. In New York, an action was brought on an attachment 1 Reidhar v. Berger, 8 B. Monroe, 160 ; * Wallace v. Finberg, 46 Texas, 35. Carpenter v. Stevenson, 6 Bush, 259. * Heath v. Lent, 1 California, 410. 2 Fleming v. Bailey, 44 Mississippi, ^ Horn v. Bayard, 11 Robinson (La.), 132. 269. 3 Frankel v. Stern, 44 California, 168. [144] CHAP. VI.] ATTACHMENT BONDS. § 183 bond, where it appeared that the plaintiff 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 property 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.^ § 182. The liability of an attachment plaintiff for actual dam- ao-e exists as well where the attachment is sued out by his attor- ney as where he obtains it himself; but no malice exhibited by the attorney in his proceedings can be given in evidence against his client, so as to make him liable 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 insufficient, 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 exe- cutes 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 con- duct. He is liable to respond personally for the injury, and is properly sued in his individual character.^ 1 Earl V. Spooner, 3 Denio, 246. ^ McCuUough v. Walton, 11 Alabama, 2 Kirksey v. Jones, 7 Alabama, 622 ; 492 ; WsvUace v. Finber^, 46 Texas, 35. McCuUough i;. Walton, 11 Ibid. 492. * Gilmer v. Wier, 8 Alabama, 72. 10 [145] EXECUTION AND RETURN OF ATTACHMENT. [CHAP. Yll. 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 qualified, 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 attached 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.^ § 184. When a writ of attachment is placed in the hands of an officer to be executed, his first duty — which he cannot ever safel}' 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 which it purported to have issued acquire through it, or through 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 b}-- 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 1 Wales V. Clark, 43 Conn. 183. [146] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 185 the clerk as an officer of the court ; and the court ordered a part of the money to be paid to the hmdlord 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 plaintiff's demand on which he founds his ac- tion, 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 holds, that a writ based on a money count containing no specification of the nature and amount of the plaintiffs 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 ofiicer 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.* 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 1 Goldsmith v. Stetson, 89 Alabama, * Fulton v. Heaton, 1 Barbour, 552; 183. Nor can the money, in such case, Kirksey v. Dubose, 19 Alabama, 43 ; be reached by creditors of tlie attachment Banta v. Reynolds, 3 B. Monroe, 80; defendant by garnishment of the clerk. Garnet v. Wimp, Ibid. 360 ; Ela v. Sliep- See post, § 545. ard, 32 New Hamp. 277 ; Owens r. Starr, 2 Saco V. Hopkinton, 29 Maine, 2C8; 2 Littell, 230; Lovier v. (iilpin, 6 Dana, Osgood V. Holyoke, 48 Ibid. 410; Neally 321 ; Walker v. Woods, 15 California, 66; V. Judkins, Ibid. 5G6 ; Hanson v. Dow, Booth i'. Kees, 26 Illinois, 45; State v. 51 Ibid. 1(55. Foster, 10 Iowa, 435. 8 Drew V. Alfred Bank, 55 Maine, ^ Sievenson v. McLean, 5 Humphreys, 450. 332; Reams v. McNail, 9 Ibid. 542; [147] § 185 C EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. any tiling to do witli 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 b. 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 upon him, not only to see that it is right in those particulars, but that it was regularly issued ; for if it be set aside for irregularity, that makes the party a trespasser ab initio, and affords him no protection as to what has been done under it : as to him, it is then as though no process had ever been issued, and the prop- erty attached had been taken and detained by his order without any process.^ § 185 c. When an attachment fails because the writ was issued Shaw V. Holmes, 4 Heiskell, 692 ; Bogert Sexey v. Adkinson, 34 California, 346 ; V. Phelps, 14 Wisconsin, 88; Cross v. Miller v. Bannister, 109 Mass. *289 ; Braley Phelps, 16 Barbour, 502. v. Byrnes, 20 Minnesota, 435 ; Maley v. 1 Livingston v. Smith, 5 Peters, 90 ; Barrett, 2 Sneed, 501 ; Cross v. Phelps, Walker v. Woods, 15 California, 66; 16 Barbour, 502; Jones v. Lake, 2 Wis- Mamlock v. White, 20 Ibid. 598. consin, 210 ; Norton v. Kearney, 10 Ibid. '^ Tiiornburgh v. Hand, 7 California, 44^ ; Bogert v. Phelps, 14 Ibid. 88. 554; Noble v. Holmes, 5 Hill (N. Y.), * Cooky. Hopper, 23 Michigan, 511. 194; Van Etten v. Hurst, 6 Ibid. 311. 5 Kerr v. Mount, 28 New York, 659 ; 3 Damon v. Bryant, 2 Pick. 411 ; Wehle u. Butler, 61 Ibid. 245. Rlnchey v. Stryker, 28 New York, 45; ri48i CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 187 without jurisdiction, or irregularly, and the attaching plaintiff is sued in trespass for seizing property thereunder, he cannot set up as a defence that he returned the property to the defendant, un- less the latter accepted it.^ Nor can he show, in mitigation of damages, that the property was subsequently sold under an execution in his favor against the defendant.^ But if another cred- itor, without any connivance with the defeated plaintiff, after- wards causes the property to be sold under a valid execution against the defendant, that fact may be shown in mitigation of damages, since the defendant has, through such sale, received the benefit of the application of the property to his debt to a third person.^ § 186. If a writ of attachment be placed in the hands of a person specially deputed to serve it, he has all the powers which may be exercised by a sheriff in the premises, but he is not enti- tled of right to be recognized or obeyed as a sheriff, or known officer, but must show his authority, and make known his busi- ness, if required by the party who is to obey that authority. In this particular he represents a special bailiff, rather than a known officer. One so deputed may, equally with a sheriff, break into a warehouse to get access to goods, where admittance is refused him.* § 187. An attachment comes within the terms of a statute for- bidding the service on Sunday of any " writ, process, order, war- rant, judgment, or decree ; " and a service of it on that day will be set aside on motion ; but cannot be reached by a plea in abatement.^ But where there is no prohibitory statute, it may be executed on that day.^ If a writ be delivered to an officer on Sunday, he is not to be regarded as having officially received it, nor can he be held responsible for not executing it on that day. He may, if he choose, recognize the receipt of it, but that will 1 Ilanmer v. Wilsey, 17 Wendell, 91 ; Ct. 1 ; 43 Howard Tract. 6 ; 12 Abbott Otis V. .Jones, 21 Ibid. 394 ; Higgins v. Pract. 139 ; 61 New York, 24-5. Whitney, 24 Ibid. 379; Ball v. Liney, 48 3 Sherry v. Schuyler, 2 Hill (N. Y.), New York, 6 ; Tiffany v. Lord, 65 Ibid. 204 ; Wehle v. Butler, 61 New York, 810. 245. ■•* Higgins V. Wliitney, 24 Wendell, * Burton v. Wilkinson, 18 Vermont, 879; Lyon v. Yates, 52 Barbour, 237; 186. Wehle V. Butler, 36 New York Superior * Cotton v. Huey, 4 Alabama, 56. 6 Matthews v. Ansley, 31 Alabama, 20. [14U] § 188 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VH. impose on him no liiglier or other duties, than if he had received it on the next day.^ In Enghmd, it is said that Christmas is considered a dies non juridicus ; but it was held not so in this country.^ § 187 a. The authority of an officer to levy an attachment con- tinues until the return day of tlie writ, or until he has actually returned it, if he do so before that day. The fact that before the return day he indorsed on the writ a return of " no property found," but kept the writ in liis hands, will not prevent his sub- sequently levying it, and making return of the levy, at any time before the return day.^ § 187 b. No levy made after the return day of the writ will be of any force, at least as against a third party claiming the prop- erty. Thus, where an attachment was made on the 28th of December, 1822, under a writ dated February 28, 1822, and re- turnable to the next May Term of the court after its date ; and trover was brought against the officer for the property ; it was held, that the officer should not be permitted to prove that the writ was in fact sued out on the first-named date, and was in- tended to be made returnable to May Term, 1823, but the word " February " had been inserted by mistake ; and that, as the writ was made returnable at May Term, 1822, nothing could be done under it in the following December.* So, where the writ was issued on the 21st of May, and made returnable to the next June Term of the court, but was indorsed " November Term, 1866;" and on the 10th of August after its issue was levied on real estate ; the levy was held of no force as against a subsequent mortgage of the land.^ In determining the return day of the writ, where the day of the month on which it is returnable is specified, but without mention of the year, or other designation of the time, it will be considered that the next month of that name after the date of the writ was intended.^ § 188. It is the duty of an officer, on receiving a writ of attach- 1 Whitney v. Butterfield, 13 California, ^ Peters v. Conway, 4 Bush, 566. 335. ^ Kelly v. Oilman, 29 New Hamp. '-i Starke v. Marshall, 3 Alabama, 44. 385; Nash v. Mallory, 17 Michigan, 232; •* Courtney i\ Carr, 6 Iowa, 238. Vinton v. Mead, Ibid. 388. * Dame v. Fales, 3 New Hamp. 70. [15U] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 189 ment, to levy it on any property of the defendant he can find, of the description recited in the writ. It is never discretionary with him, if he finds such property, whether to execute the writ or not ; nor is he allowed to provide for the plaintiff another rem- edy than that afforded by the writ, for the collection of his debt. He must take the property into the custody of the law. Any agreement to induce him to omit the performance of his duty is void, upon considerations of public policy. Thus, where an offi- cer, having a writ of attachment in his hands, was induced to forbear levying it, by the defendant's executing a bond in favor of the plaintiff, with security, conditioned to save the ofiicer harm- less by reason of his not proceeding to attach property, and to pay whatever judgment might be rendered against the defend- ant ; and the plaintiff afterwards recovered judgment in the attachment suit, and, failing to make the money therein, sued upon the bond ; it was held, that no action could be maintained on it, and that it was not such a security as the plaintiff, by adopting, could render valid. ^ § 189. To ascertain who is the actual owner of personal prop- erty, notwithstanding the indication arising from acts of owner- ship, is often attended with difliculty ; and an ofiicer ought not to be holden to proceed to make an attachment, without an indem- nity, where there is great danger of his committing a trespass in so doing ; and where he has good reason to doubt whether goods are the property of the defendant, he may insist on the plaintiffs showing them to him, and also on being indemnified.^ But if he would avail himself of the right to require indemnity, he must inform the party who placed the writ in his hands that he objects to proceeding without it. He cannot neglect to execute the writ, and then justify his neglect by the failure of the party to indemnify him, when he asked no indemnity.^ If property be attached without any controversy at the time as to the title, and it is afterwards claimed by a third person, it 1 Cole V. Parker, 7 Iowa, 167 ; Denson York, 115 ; Sliriver v. Harbaugh, 37 Penn. V. Sledge, 2 Devereux, 136. State, 399. In Tennessee it is held, that 2 Bond V. Ward, 7 Mass. 12.3; Sibley there is no law authorizing an officer to V. Brown, 15 Maine, 185 ; Hanlett v. require indemnity before levying an Bloilgett, 17 New Hamp. 298; Perkins attachment on disputed property. Shaw V. Pitman, M Ibid. 261 ; Smith v. Osgood, v. Holmes, 4 Ileiskell, G'J2. 46 Ibid. 178; Smith <•. Cicotte, 11 Michi- ^ Perkins v. Pitman, 34 New Hamp. gan, 38;j ; Giiamberlain i'. Beller, 18 New 261. [151] § 190 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. is held in New Hampshire, that the officer may demand indem- nity before proceeding to sell the property under the attachment or under execution issued in the attachment suit.^ This, how- ever, would hardly be considered applicable to any system which allowed the third person to intervene in the attachment suit, and have his claim to the property adjudicated therein directly by the court. If there are several attaching creditors of the same property, and some give indemnity and others refuse to do so, the latter will be precluded from claiming the avails of the attached prop- erty, even though their attachments under the original writ were prior to those of the parties who gave indemnity.'^ When a plaintiff, at the request of the officer, and with knowl- edge that the goods to be attached are claimed by another than the defendant, gives a bond of indemnity to the officer against all suits, damages, and costs by reason of the attachment, he thereby assumes the responsibility of the officer's acts, and is lia- ble to the owner for the subsequent conversion of the goods ; and an unsatisfied judgment for the same cause against the officer is no bar to this recourse against the plaintiff.^ § 189 a. When an officer takes a writ, with directions to serve it in a particular manner, without requiring of the plaintiff an indemnity, he is bound to serve it, if he can, according to the instructions ; and it is not a sufficient excuse for him that he sub- sequently obtained information which led him to suppose that a service in the manner directed would be ineffectual for the inter- ests of the plaintiff, and even expose himself to an action, if his supposition was erroneous, and a service in the manner directed would, in fact, have been legal and effectual. He is liable unless he can show that he could not lawfully have obeyed the direc- tions.^ § 190. The officer is bound to attach sufficient property, if it can be found, to secure the amount of the plaintiffs claim, as stated in the writ, and failing in this he will be liable for any de- ficiency.'^ Where, therefore, an officer levied three attachments 1 Smith V. Osgood, 4G New Hanip. 3 KnigJit v. Nelson, 117 Mass. 458. 178. * Kaiilett v. Blodgett, 17 New Hamp. 2 Smith V. Osgood, 46 New Hamp. 298. 178. 5 In Fitzgerald v. Blake, 42 Barbour, [152] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 191 successively on a defendant's personal property ; and having received a fourth writ, levied it on his real estate, the proceeds of which were absorbed in satisfying that writ ; and it was after- wards ascertained that the personalty on which the preceding three writs were levied was not sufficient to satisfy them ; it was held, that the officer was liable for the deficiency ; that he might have levied all the writs on all the property ; that he was bound at his peril, if he did not levy on all, to levy on enough to satisfy the demands ; and that he was not excused by the fact that an appraisement of the personalty, made after the levy, indicated an amount sufficient for that purpose.^ If in such case an officer represent to the plaintiff that he made an attachment, when in point of fact he did not, and thereby induce the plaintiff to rely upon it, and to forego making any further attachment, when he might have done so, the officer is bound by his representation, and when sued by the plaintiff for failing to attach sufficient property, is estopped from showing that in fact he made no legal attachment.2 But if, by a mistake of the plaintiff in making out the writ, the amount which the sheriff is required to secure is less than the debt sued on, and the sheriff receive from the defendant a sum of money equal to the amount named in the writ and costs, and release property attached by him, which was of sufficient value to have secured the whole debt ; the sheriff will not be held responsible for the difference between the amount paid him and that of the judgment recovered by the attachment plaintiff; for he was misled by the mistake of the plaintiff himself.^ § 191. It is the duty of the officer to execute the writ as soon as he reasonably can after it comes into his hands ; for if by his unnecessary delay in seizing property or summoning garnishees 513, the Supreme Court of New York able discretion in perfomiing his duty, used the following language : " It is the The plaintiff has no autliority to dictate duty of the sheriff to attacii so much of the extent of the levy, any more than the property of the defendant as will be the defendant has to limit it. Tiie plain- sufficient to satisfy the plaintiff's de- tiff can point out property to the sheriff, mand, with costs and expenses. In this and require a levy upon so much as will case tiie sheriff has levied on so much as be sufficient, but tlie sheriff must decide he consiilered sufficient. The extent of for himself, upon the responsibility which the seizure was within the exercise of a attaches to his office, as to the extent sound discretion by the sheriff. If his and sufficiency of the seizure." levy was excessive, the defendant might l Ransom v. Halcott, 18 liarbour, 56. complain ; and if insufficient, the plain- 2 Howes v. Spicer, 23 Vermont, 508. tiff. He is responsible to both parlies '^ Rage v. Belt, 17 Missouri, 263. for the exercise of a sound and reason- [153] § 191 a EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. the plaintiff loses his debt, the officer will be liable; and his lia- bility will not be avoided by his showing that he was not specially required to serve the writ immediately, or that it Avas in fact served A\ithin the time authorized by its terms.^ And after the attachment is begun, it should be continued with as little inter- ruptitin 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 with 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 cii'cumstances 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 on a Sunday night, and another writ was delivered to a deputy 1 Kennedy v. Brent, 6 Crancli, 187. [154] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 193 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 tlie 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 expira- tion 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 judg- ment under the summons. In such case the rendition of the judg- ment 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 officer, 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 officer 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, hav- ing changed his mind in regard to some of the property, he de- termined not to take away a part of the finished carriages he had attached, but, in lieu thereof, to make another attachment of un- finished 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 enter- ing a dwelling-house against the owner's will, and attaching his property theie ; to which more particular reference will presently be made.* Such, too, is tlie case of a plaintiff fraudulently obtain- ing possession, in one State, of the property of his debtor, and re- » Whitney v. Butterfield, 13 California, * Bishop v. Warner, 19 Conn. 460. 335. 4 Post, § 200. ■^ Scheib v. Baldwin, 22 Howard Pract. 278. [155] § 193 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. moving it clandestinely into another State, and there attaching it.^ So, likewise, Avhere the plaintiff decoyed a slave from one State into another, for the purpose of attaching him for the debt of his owner.^ So, where the officer watched the defendant at work in his field, where he might have served the writ upon him, bnt did not, and waited till the plaintiff's agent enticed the de- fendant ont of the State, and then attached the defei]dant's real estate, "for want of liis 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 the 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 attachment 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 attacli- 1 Powell V. McKee, 4 Louisiana An- ^ Nason v. Esten, 2 Rhode Island, 337 ; nual, 108; Paradise v. Farmers and Mer- Metcalf v. Clark, 41 Barbour, 45. chants' Bank, 5 Ibid. 710; Wingate v. * Gilbert t'. HoUinger, 14 Louisiana Wheat, 6 Ibid. 238; Myers v. Myers, 8 Annual, 441. Ibid. 3(59. ^ Pomroy v. Parmlee, 9 Iowa, 140. 2 Timmons v. Garrison, 4 Humphreys, ^ Pon)roy v. Parmlee, 9 Iowa, 140. 148. "^ Deyo v. Jennison, 10 Allen, 410. [156] CHAP. VII.] EXECUTION AND EETURN OF ATTACHMENT. § 194 ment against A. on property which 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 for 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.i 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- mity 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 ah 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 V. Devens, 11 Gushing, 59. of duty, or such an improper and illegal 2 Closson V. Morrison, 47 New Hamp. exercise of the authority to the prejudice 482. of another, — such an active and wilful 3 Gardner v. Hust, 2 llichardson, 601. wrong perpetrated, — as will warrant the * Barrett v. White, 3 New Ilanip. 210. conclusion that 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 authority as a cover for his take as a person of ordinary care and illegal conduct. Where the acts proved common intelligence might commit, will warrant no such conclusion, the person not amount to an ahuse ; but there must charged with them is not a trespasser." be a complete departure from the line [157] § 195 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII.' be considered a trespasser from the beginning.^ The reason of this rule is, that it Av^ould 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 forfeiture 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 un- reasonable 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 laAvful 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 he 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. - Barrett v. White, 3 New Hamp. 210; Peeler v. Stebbins, 2G Vermont, 644. 3 Wakefield v. Pairman, 41 Vermont, 339. [158] * Collins V. Perkins, 31 Vermont, 624. * Yale V. Saunders, 1(5 Vermont, 243 ; Stewart v. Martin, Ibid. 397. <> Poss V. Stewart, 14 Maine, 312; Bean v. Hubbard, 4 Gushing, 85 ; Rich- CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. § 196 instance, a trunk, — he is under a necessity of taking into Ms possession with it articles exempt from attachment, and if he in- termeddles 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 vaHd ; 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 at- tached. '^ § 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 ao-ainst him. Such an attachment is a tortious act, which is it- self 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,^ 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 at- tachment suit.^ And against either officer or plaintiff, where both engage in the act, suit may be brought at once, witliout any demand or notice, ^^ and without tlie owner being under obligation ards V. Daggett, 4 Mass. 534 ; Gibson v. 5 People v. Schuyler, 4 Comstofk, Jenney, 15 Ibid. 205; Kiffi;. Old Colony, 173; Archer v. Noble, 3 Maine, 418; &c., R. R. Co., 117 Ibid. 591 ; Howard v. Harris v. Hanson, 11 Ibid. 241 ; Common- Williams, 2 Pick. 80; Lynd v. Picket, 7 wealth v. Stockton, 5 Monroe, 192; State Minnesota, 184; Cooper v. Newman, 45 v. Moore, 19 Missouri, 369; State r. Fitz- New Hamp. 339. patrick, G4 Ibid. 185 ; Van Pelt v. Littler, 1 Towns V. Pratt, 33 New Hamp. 345. 14 California, 194 ; Sangster v. Common- 2 Hewes v. Parknian, 20 Pick. 90. wealth, 17 Grattan, 124. « Marsh v. Backus, 16 Barbour, 483. " Oestrich v. Greenbaum, 16 New York Supreme Ct. 242. ^ JJutler V. Borders, 6 Blackford, 160. ' Nasii V. Farrington, 4 Allen, 157 Clapp V. Thomas, 5 Ibid. 158 ; Smith v Chadwick, 51 Maine, 515. 4 Woodbury v. Long, 8 Pick. 543 Ford V. Dyer, 26 Mississippi, 243 ; Meade ^ I'errin v. Claflin, 11 Missouri, 13 V. Smith, 16 Conn. 346; Caldwell v Arnolil, 8 Minnesota, 265 ; Sangster v Commonwealth, 17 Grattan, 124. 10 Tufts V. McClintock, 28 Maine, 424; Richardson v. Hall, 21 Maryland, 399. [159] § 197 EXECUTION AND EETURN OF ATTACHMENT. [CHAP. VII. to take any steps in the suit in wliich the seizure is made ; ^ hut 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 tlie 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.^ § 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 5. 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 b}' its owner, charge the costs and expenses of the attachment and sale, against the fund arising from the sale.^ § 197. The necessity for the officer's making due inquiry con- cerning the property he attaches is so highly regarded, that he wall be treated as a trespasser for seizing property not belonging to the defendant, even though the owner give him no special no- tice 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 ; 1 Shuff y. Morgan, 9 Martin, 592. * Ginsberg v. Polil, 35 Maryland, 505. 2 Trieber v. Blacber, 10 Maryland, 14. ^ Haywood v. Hardie, 76 North Caro- 8 Judson V. Lewis, 7 Louisiana An- Una, 384. nual, 55. '' Stickney v. Davis, 16 Pick. 19. •• King V. Bucks, 11 Alabama, 217; Sims V. Jacobson, 51 Ibid. 186. [160] CHAP. VTI.] EXECUTION AND RETURN OF ATTACHMENT. § 199 for in such case the owner is bound by the terras of the receipt to retain the property and have it ready for delivery 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 property, and informed him that he was directed to make an at- tachment ; and the defendant informed the officer that the prop- erty was not his ; and the officer did not take it or intei'fere 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 officer attached a quantity of plate-glass, and did not remove it, but, under a statutory provision authorizing such course, de- posited 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 dis- turb 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.^ § 199. The doctrines of the common law in relation to confusion of goods have been partially brought into view and applied, in connection 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, 1 Robinson v. Mansfield, 13 Pick. 139 ; * Morse v. Kurd, 17 New Hamp. 246. Jolins V. Church, 1"2 Ibid. 557. ^ Rand v. Sargent, 28 Maine, 320. '^ Paxton V. Steckel, 2 Penn. State, 03. ^ Polley v. Leno.x Iron Works, 15 ' Gibbs w. Ciiase, 10 Mass. 125 ; Miller Gray, 513. See Bailey v. Adams, 14 V. Baker, 1 Metcalf, 27 ; St. George v. Wendell, 201. O'Conneli, 110 Mass. 475. 11 [IGl] § 199 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. though there can be no confusion without intermixture. Con- fusion takes phice 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 ar- ticles 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.* Wiien an officer proceeds to execute an attachment, he is au- thorized 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 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 1 Hesseltine v. Stockwell, 30 Maine, undistinguishable, because a new ingre- 237: Tufts v. McCliutock, 28 Ibid. 42-t. dieiit is formed, not capable of a just In Kobinson v. Holt, 89 New Hamp. 557, appreciation and division according to tlie court said: "The doctrine of tlie tlie original rights of each, or if the arti- confusion of goods has been often dis- cles mixed are of different values or cussed, and may be considered as clearly quantities, and the original values or and distinctly settled. If the goods of quantities cannot be determined, the several intermingled can be easily dis- party who occasions, or through whose tinguished and separated, no change of fault or neglect occurs the wrongful mix- property takes place, and each party may ture, must bear the whole loss." lay claim to his own. If the goods are ^ Loomis v. Green, 7 Maine, 386 ; Hes- of the same nature and value, although seltine v. btockwell, 30 Ibid. 237. not capable of an actual separation by * llolbrook v. Hyde, 1 Vermont, 286. identifying each particular, if the portion ^ Treat v. Barber, 7 Conn. 274. of each owner is known, and a division ^ Tufts v. McClintock, 28 Maine, 424; can be made of equal proportionate value, Wilson v. Lane, 33 New Hamp. 466. as in the case of a mixture of corn, cotiee, ^ Lewis v. Whittemore, 5 New Hamp. tea wine, or other article of the same 864; Albee v. Webster, 16 Ibid. 362; kind and quality, then each may claim Shumway v. Ilutter, 8 Tick. 443. his aliquot part; but if the mixture is [162] CHAP. VII.] EXECUTIOX AND RETURN OF ATTACHMENT. § 199 principles of the common law, entitled to the entire property, without lial)ility 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 part}' ; and if the former would reclain'i his property b}' law, the burden of proof is on himself to distinguish his goods from those of the defendant.^ If he know of the at- tachment, 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 lev}^ it on pi-operty 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 intermingled with others of a similar kind, which, without dis- pute, belong to B. ; he cannot demand of B. to select what is undisputedly his ; and a refusal b}' B. to make such selection will not justify an attachment of the whole ; unless B. made the in- termixture fraudulently, and with the intention of frustrating the attachment.^ ^ Ryder v. Hathaway, 2 Pick. 298 ; and value. It is only in those cases Willard v. Rice, 11 Metcalf, 493 ; 2 Kent's where the intermixture has been caused Com. 364; Story on Bailments, § 40; by the wilful or unlawful act of one of Beach;;. Schmultz, 20 Illinois, 185 ; Robin- the proprietors, and the several parcels son V. Holt, 3!) New Hamp. 557 ; Taylor have thereby become so combined or V. Jones, 42 Ibid. 25. In Smitli v. San- minjiied together that they can no longer born, 6 Gray, 134, the court said : " A be identified, that his interest in them is change of ownership does not necessarily lost." ensue from the mere intermixture of - Beach v. Schmultz, 20 Illinois, 185. property belonging to different individu- ^ Loomis v. Green, 7 Maine, 386 ; Wil- als. Tlieir rights as owners may remain son v. Lane, 33 New Hamp. 466; Robin- unaflTected after it has taken place. Each son v. Holt, 30 Ibid. 557 ; Weil v. Silver- one of them is still at liberty to reclaim stone, 6 Bush, 608. what had before belonged to him, if it * Bond r. Ward, 7 Mass. 123 ; Lewis can be distinguished and separated from v. Wiiitteniore, 5 New Hamp. 364 ; Wil- the rest; or may insist on receiving his son v. Lane, 33 Ibid. 466. just projjortion of the whole, when the '" Sawj-er v. Merrill, 6 Pick. 476; several parcels of which it consists, Albce v. Webster, 16 New Hamp. 362. though they have become indistinguish- ^ Treat v. Barber, 7 Conn. 274. able, are of substantially the same quality [163] § 200 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VH. 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 tliere was such an intermixture, that tliey could not, upon due inquiry, be distinguished from those of the defendant.^ The necessity for inquiry in such cases is, with great propriety, ver}'- 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 nec- essary 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, 1 Walcott V. Keitli, 2 Foster, 196 ; » Shumway v. Rutter, 8 Pick. 443. Wilson V. Lane, 3o New Hamp. 466; * Fullerton v. Mack, 2 Aikens, 415; Morrill v. Keyes, 14 Allen, 222. Piatt v. Brown, 16 Pick. 553; Burton v. ' yibley v. Brown, 15 Maine, 185; Wilkinson, 18 Vermont, 186; Perry v. Smith V. Sanborn, 6 Gray, 134; Carlton Carr, 42 Ibid. 50; Messner v. Lewis, 20 V. Davis, 8 Allen, 94; Morrill r. Keyes, Texas, 221. 14 Ibid. 222 ; Gilman v. Hill, 36 New & Rowley v. Rice, 11 Metcalf, 337. Hamp. 311. [164] CHAP. Vn.] EXECUTION AND RETURN OF ATTACHMENT. § 201 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 pos- session thereof longer than is necessary to make a proper attach- ment 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 ke}^ of the building, it is all that is neces- sary ; 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 officer take entire possession of the building, excluding the owner, he may, as respects the owner, be regarded as a trespasser ah initio^ 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 part}^ living in a tenement-house, which was let in distinct portions to several tenants, who used in common 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 dwell- ing-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 amount in value than the debt to be secured, transcends his au- thority, and becomes a trespasser ab 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 necessar}'- to satisf}^ the attachment ; that if he acted oppressively, he might be 1 Malcom v. Spoor, 12 Metcalf, 270; * Fullerton v. Mack, 2 Aikens, 415; Williams r. Powell, 101 Mass. 467 ; Davis Newton v. Adams, 4 Vermont, 437. V. Stone, 120 Ibid. 228. & Ili^iey v. Nichols, 12 Pick. 270; Peo- ^ Perry u. Carr, 42 Vermont, 50. pie v. Hubbard, 24 Wendell, oti9. " Burton r. Wilkinson, 18 Vermont, *" Swain v. Mizner, 8 Gray, 182. 186. ■• Burton v. Wilkinson, 18 Vermont, 186. [165] §203 EXECUTION AND RETURN OF ATTACHMENT. [CHAP. VII. liable to an action by the part}' injured ; but that third persons could not interpose and claim to set aside the attachment for that cause. ^ § 202. An officer should not do any act, at the time of making an attachment, which could be construed into an aljandonment of the attachment, or the attachment will be a nullity. Thus, where an officer having an attachment, got into a Avagon 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, npon 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 asr» 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 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, 1 Merrill r. Curtis, 18 Maine, 272. ^ Lamb v. Day, 8 Vermont, 407; '^ French r. Stanley, 21 Maine, 512. Brigt^s ». Gleason, 29 Ibid. 78 ; Collins 3 Dean i'. Bailej-, 12 Vermont, 142. v. Perkins, 31 Ibid. 624. * Lamb v. Day, 8 Vermont, 407. [1G6] CHAP. VII.] EXECUTION AND RETURN OF ATTACHMENT. 204 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- ert}- till the return day of the writ, without maldng 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 t6 the contrary, would be that it was made on or before that day .3 The return can be made only by the officer to whom the writ was directed. A return made by another officer is void.^ And though that may be 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 b}' parol evidence,^ it is important, not only to the parties interested, but to 1 Paul V. Slason, 22 Vermont, 231. 2 Wilder V. Holden, 24 Pick. 8; Riiss V. Butterfield, 6 Gushing, 242 ; Williams V. Babbitt, 14 Gray, 141 ; Paine r. Farr, 118 Mass. 74; Tomiinson v. Stiles, 4 Duteber, 201 ; 5 Ibid! 426. In Alabama, however, in the case of an ancillary attach- ment, — which is an attachment taken out in a suit previously instituted by summons, — it was held, that the failure of a sheriff, without the connivance or consent of the plaintiff, to return sucli an attaclimcnt until after judgment, did not affect the ])laintifl''s lien. Reed v. Perkins, 14 Alabama, 231. And in South Carolina, a sheriff who had neglecteil to make his return in proper time was al- lowed to make it afterward nunc pro tunc. Bancroft v. Sinclair, 12 Richardson, 617. And in California, wiiere a mortgagee of real estate, under a mortgage executed after the levy of an attachment, sougiit to enjoin the sale of the property be- cause the sheriff had not made a proper return on the writ, but had, as required by statute, filed in the Recorder's office of the county a copy of the writ with a description of the property attached ; it was held, that the lien of the attachment was not devested by the failure of the officer to make a proper return ; that the fact of Ibid. 41.5; Hovey y. 459; Davidson v. Cowan, 1 Devereu.v, Wait, 17 Ibid. 190; Williams r. Hrackctt, 304; Uliio Life Ins. & Tr. Co. v. Urbuna 8 Mass. 240; Means v. Osgood, 7 Maine, Ins. Co., 13 Oliio, '22\). 14H; Berry v. SjKvir, 13 Ibid. 187 ; Ban- ^ ii;,ven v. Snow, 14 Pick. 28. nister v. llifrj^inson, lo li)id. 73; Oilman * Jolmson v. Day, 17 Pick. lOG ; Cliilds V. Stetson, IG Ibid. 124; Kveletb v. Little, v. Barrows, 9 Metcalf, 413; Fairfield v. Ibid. 374; Fairfield v. Paine, 23 Ibid. Paine, 23 Maine, 498. [179] § 222 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 ;i 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 attaclier, such sale had no effect to discharge the lien of the senior attachment.^ § 222. The levy of an attachment is no satisfaction of the ^ Hears i\ Winslow, 1 Smedes & Mar- shall, Ch'y, 449; Williamson v. Bowie, 6 Muiiford, 176 ; Wallace r. Forest, '2 Har- ris & McHenry, 261 ; Toiuliiison v. Stiles, 4 Dutclier, 201. ■•^ Crowninsliield ?•. Strobel, 2 Brevard, 80; Kobertson v. Forrest, Ibid. 466; Betliune v. Gibson, Ibid. 501 ; Crocker v. Eadcliffe, 3 Ibid. 23 ; Lynch v. Crary, 52 New York, 181. 3 Gates V. Bushnell, 9 Conn. 530; Sewell V. Savage, 1 B. Monroe, 260; Nutter V. Conneit, 8 Ibid. 199; Fitch v. Waite, 5 Conn. 117 ; Learned v. Vanden- burj^h, 8 Howard Pract. 77 ; Pond v. GrilRn, 1 Alabama, 678 ; Crowninsliield V. Strobel, 2 Brevard, 80 ; Robertson v. Forrest, Ibid. 466 ; Bethune v. Gibson, Ibid. 501 ; Crocker v. Kadcliffe, 3 Ibid. 23; Zeigenhagen v. Doe, 1 Indiana, 2'J6; Burklmrdt i-. McClellan, 15 Abbott Pract. 243, v'ltf: ; Taffts v. Manlove, 14 California, 47 ; Haldeman v. Hillsborough & Cin. R. R. Co., 2 Handy, 101 ; Kuhn c. Graves, [180] 9 Iowa, 303; Stockley v. Wadman, 1 Houston, 350 ; Rodgers v. Bonner, 45 New York, 379 ; Lynch v. Crary, 52 Ibid. 181 ; Ensworth v. King, 50 Missouri, 477. 4 Tyrell v. Rountree, 7 Peters, 4G4 ; 1 McLean, 95; Stephen v. Tiia\er, 2 Bay, 272; Am. Ex. Bank v. Morris Canal & Banking Co., 6 Hill (N. Y.), 302; Mar- tin V. Dryden, 6 Illinois (1 Gdman), 187; Redus V. Wofford, 4 Smedes & Marshall, 579 ; Brown v. Williams, 31 Maine, 403; Tappan v. Harrison, 2 Humphreys, 172; Oldham v. Scrivener, 3 B. Monroe, 579; Lackey v. Seibert, 23 Missouri, 85 ; Ens- worth V. King, 50 Ibid. 477 ; Hannahs v. Felt, 15 Iowa, 141 ; Cockey v. Milne's Lessee, 16 Maryland, 200; Wilson v. Forsyth, 24 Barbour, 105 ; Bagley v. Ward, 37 California, 121 ; Loubat v. Kipp, 9 Florida, 60. •^ Hanauer v. Casey, 26 Arkansas, 352. CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. § 223 plaintiff's demand, as that of an execution is, under some circum- stances ; ^ nor does it change the estate of the defendant in the property attaclied ;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.6 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 tlie 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 the property or assets attached, than the defendant had lohen the attachment took place, unless he can show some fraud or collusion by which his rights are impaired.^ No interest suljsequently ac- quired by the defendant in the attached property will be affected ' McBride v. Farmers' Bank, 28 Bar- Brown, 24 Ibid. 89 ; Warner r. Everett, hour, 476 ; Maxwell v. Stewart, 22 Wal- 7 B. Monroe. 262 ; Wheeler v. Nichols, lace, 77. Sfd contra, Yourt v. Hopkins, 32 Maine, 233; Calkins v. Lockwood, 17 24 Illinois, 326. Conn. 154; Merrick y. Hutt, 15 Arkan- •i Bigel'ow V. Wilson, 1 Pick. 485; sas, 331; Klinck v. Kelly, 63 Barbour, Blake v. Shaw, 7 Mass. 605; Starr v. 622. Moore, 3 McLean, 354 ; Tiernan v. Mur- ^ Bigelow v. Willson, 1 Pick. 485 ; rah, 1 Robinson (La.), 443; Crocker v. Crocker v. Radcliffe, 3 Brevard, 23; Pierce, 31 Maine, 177 ; Wheeler v. Willing v. Bleeker, 2 Sergeant & Rawle, Nichols, 32 Ibid. 233 ; Perkins v. Norvell, 221 ; Owings v. Norwood, 2 Harris & 6 Humphreys, 151 ; Snell v. Allen, 1 Johnson, 96 ; Goddard v. Perkins, 9 New Swan, 208 ; Ohlham v. Scrivener, 3 B. Hamp. 488 ; Austin v. Wade, Pennington, Monroe, 579; lialdeman v. Hillsborough 2d Ed. 727; Foulks v. Pegg, 6 Nevada, & Cin. R. R. Co., 2 ILandy, 101 ; Mer- 136. rick V. Hutt, 15 Arkansas, 331 ; Larimer « McKay v. Harrower, 27 Barbour, V. Kelly, 10 Kansas, 298. 463. 8 Grosvenor v. Gold, 9 Mass. 209. '^ Welch v. Jamison, 1 Howard (]Mi.), * Bigelow V. Willson, 1 Pick. 485 ; 160. Denny v. Wiliard, 11 Il)id. 519 ; Petty- « Blake v. Shaw, 7 Mass. 505. place V. Dutch, 13 Ibid. 388 ; Arnold v. 9 Post, § 245. [181] § 224 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAr. VIII. by tliG attachment.^ If tlio ])roperty, when attached, is subject to a lien boiut fide })hieed upon it by the defendant, that lien must be respected, and the attachment postponed to it.^ And tliis rule was once lield 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 the 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, by the Supreme Court of Pennsylvania, and by that 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 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 attaclnnentj ' Crocker v. Pierce, 31 Maine, 177 ; Handly v. Pfister, 39 California, 283. 2 Nathan v. Giles, 5 Taunton, 558, 576; Baillio v. Poisset, 8 Martin, n. s. 387 ; Frazier v. Willcox, 4 Robinson (La.), 517; Peck v. Webber, 7 Howard (Mi.), 658; Parker v. Farr, 2 Browne, 331 ; Reeves v. Johnson, 7 Halsted, 29 ; Meeker v. Wilson, 1 GaIlison,419; HalJe- man v. Hillsborough & Cin. R. R. Co., 2 Handy, 101. ^ Taylor v. Royal Saxon, 1 Wallace, Jr., 311. * Taylor v. Carryl, 24 Penn. State, 259; s. c. 20 Howard Sup. Ct. 583. 5 Goore v. McDaniel, 1 McCord, 480 ; Peck V. Webber, 7 Howard (Mi.), 658; Smith V. Bradstreet, 16 Pick. 264 ; Peo- ple V. Cameron, 7 Illinois (2 Gilnian), 468; Vinson v. Huddleston, Cooke, 254; Van Loan v. Kline, 10 Johnson, 129 ; Desha v. Baker, 3 Arkansas, 509 ; Frell- son V. Green, 19 Ibid. 376 ; Harrison v. Trader, 29 Ibid. 85; Davenport v. Lacon, 17 Conn. 278; Schacklott & Clyde's [182] Appeal, 14 Penn. State, 326; Erskine v. Staley, 12 Leigh, 406 ; Moore v. Holt, 10 Grattan, 284 ; Cary v. Gregg, 3 Stewart, 433 ; Murray v. Gibson, 2 Louisiana An- nual, 311 ; Hervey v. Cliampioii, 11 Hum- phreys, 569 ; Snell v. Allen, 1 Swan, 208 ; Zeigenhagen v. Doe, 1 Indiana, 296 ; Pierson v. Robb, 4 Illinois (3 Scamnion), 139; Martin v. Dryden, 6 Illinois (1 Gil- man), 187 ; Lyon v. Sanford, 5 Conn. 544; Lackey v. Seibert, 23 Missouri, 85; Hannahs v. P'elt, 15 Iowa, 141 ; Chandler V. Dyer, 37 Vermont, 345; Ward v. Mc- Kenzie, 33 Texas, 297. ^ Hannahs v. Felt, 15 Iowa, 141. But if the legislature repeal the law author- izing proceedings by attachment, it was held in Indiana, there can be no further movement in pending suits of that kind. See post, § 412. 7 McBride v. Floyd, 2 Bailey, 209; Harvey v. (irynies, 8 Martin, 395 ; Bach V. Goodrich, 9 Robinson (La.), 391; Franklin Fire Ins. Co. v. West, 8 Watts & Sergeant, 350 ; Randolph v. Carlton, 8 CHAP. VII I.] EFFECT AND OFFICE OF AN ATTACHMENT. § 225 § 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 by attachment, the pLiintiff 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 therel)y acquired, and this priority is maintained and enforced under the judgment. If the plaintiff neglect, within the lawful period of liis judgment lien, to subject the property to execution, the lien of the attachment does not revive on the expiration of the judgment lien.^ § 225. In 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 property. 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- Alabama, 606; Conway v. Butclier, 8 from the want of jurisdiction in the court rhiiailelpliia, 272; Ozinore t-. Hood, 53 of chancery to investigate fraud; but it Georgia, 114; Stevenson v. Prather, 24 results from tlie circumstance of the de- Louisiana Annual, 434. mand which constitutes the creditor, 1 Lynch v. Crary, 52 New York, 181. being cognizable at law, and tiie neces- 2 Bagley v. Ward, 37 California, 121. sity of that demand being established hy » Scott V. McMillen, 1 Littell, 302. the determination of a court, acting The views of the court were thus ex- within its legitimate sphere; and when- pressed: "Generally speaking, creditors ever the demand is so established, the must show themselves to be such, by court of chancery, acting within the ac- obtaining judgment at law, before they knovvledged liiftts of its jurisdiction, will be allowed to apply to a court of will search out the fraud, and clear away equity to investigate any fraud alleged all obstructions to tiie effectual execution to have been committed by their debtor, of the judgment at law. in alienating liis pro|>erty. The neces- " Notwithstanding, however, it may, sity of tlius first obtaining judgment at in the general, he necessary for the cred- law, before application is made to a court itor to establish his demand at law before of chancery, does not, liowever, arise he applies to a court of chancery, it can- [183] §22^ EFFE'CT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. souri, where the debtor had absconded, and under the particular cir- cumstances of that case, the law afforded no remedy by attachment.^ In several States the attempt has been made to establisli an ex- ception in favor of attaching creditors. In New York, before the adoption of the Code of Procedure, and v/hen an attachment 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 only a garnishee summoned ; and the court held, that the garnishment was not a lien on the effects in the garnishee's hands, and therefore would not sustain the bill. The decision, however, did not rest on that position alone, but the court applied not be admitted to be indispensable in every case. Cases may occur, and tlie present case was of that character when the bill was filed, where, from the absence of tlie debtor from the country, the cred- itor would not be enabled to establish his demand at law. At common law, the creditor, in such a case, might perhaps establish his demand at law, by proceed- ing to outlaw the defendant ; but in this country, after a return of ' no inhabitant' on the writ, the suit is directed to abate, and after an abatement there can be no proceedings to outlawry. Possessing, therefore, no means of establishing his demand at law, it would seem the cred- itor ought, without first commencing an action at law, to be allowed to apply to a court of equity for relief. It is not unusual for courts of equity to entertain jurisdiction and give relief, wherever the principles by which the ordinary courts are guided in their administration of jus- tice, give right, but from accident, or fraud, or defect in their mode of proceed- ing, those courts can afford no reniedy, or cannot give the most complete remedy. It is upon this principle, of a defect in the mode of proccedinji? at law, that the jurisdiction of many causes has been translated from a court of law to a court of chancery ; and if such a defect be sufficient to transfer a cause, otherwise cognizable at law, to a court of chancery, a fortiori should it be sufficient to author- ize the Chancellor to take cognizance of [184] a case involving matter properly of equi- table jurisdiction, sooner than he would have done, if no such defect in the pro- ceeilings at law existed. "Fraud is properly cognizable in a court of chancery, as well as in a court of law, and although, when committed by debtors in conveying their property to the prejudice of creditors, the Chan- cellor, in ordinary cases, may refuse to inquire into the fraud, until the creditor, by obtaining judgment at law, establishes the justice of his demand ; yet, when the debtor, by absenting himself from the country, renders all proceedings at law against him ineffectual, the Chancellor, regardless of his practice in ordinary cases, will lay hold of the property al- leged to be fraudulently conveyed, ex- amine the fraud, inquire into tlie justice of the creditor's demand, and finally, by acting on the tlm^ij, grant tiie appropriate relief. It is true, according to the ancient practice in chancery, no decree could be pronounced against a defendant, without tiie personal service of process ; but we have, in this country, a statute authoriz- ing, in all suits in chancery against absent defendants, an order for publication ; and the publication, when made, is, for all purposes of trial, equivalent to the per- sonal service of process." 1 Pendleton v. Perkins, 49 Missouri, 565. 2 Falconer v. Freeman, 4 Sandford Ch'y, 5G5. CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. § 22o the general rule, as above stated ; which would have been equally adverse to the proceeding if property had been levied on.i In Missouri, the rule was applied, where attachments Avere levied on goods previously taken under executions issued on judgments confessed by the defendants, which were alleged lb be fraudu- lent.2 In Nebraska, it was enforced, where an attachment was levied on real estate, and the attachment plaintiff sought to set aside a conveyance 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.9 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 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 b}' the vendee or assignee against the officer or the at- taching 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. 1 Bigelow V. Andress, 31 Illinois, .S22. ruling Melville v. Brown, 1 Harrison, 363. 2 Martin v. Midiacl, 23 Missouri, 50. See Williams v. Miclienor, 3 Stockton, 3 Weil V. Lankins, 3 Nebraska, 384. 520 ; Kobert v. Hodges, 16 New Jersey, * Tennent i;. Battey, 18 Kansas, 324. Eq., 2<)'J ; Curry v. Glass, 25 Ibid 108. 5 Stone V. Anderson, 6 Foster, 506; ^ Ward r. MeKenzie, 33 Texas, 297. Dodge V. Griswold, 8 New Ilamp. 425; ^ Heyneman v. Dannenbcrg, 6 Cali- Tappan u. Evans, 11 Ibid. iJll ; Sheafe forniii, .376 ; Scales y. ScoU, 13 Ibid. 76. V. Slieafe, 40 Ibid. 51(;. See Castle v. Bader, 23 Ibid. 75. « Hunt V. Field, 1 Stockton, 36, over- 9 McMinn u.Whelan, 27 California, 300. [185] § 225 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. On the other liand, it is urg^ed tliat tlie statute rehitive to fraudu- lent conveyances is not by its terms confined to judgment credit- ors ; that such conveyances are void as to all creditors who elect to treat them as void by adopting the process wliich the law provides ; th^t 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, transfers of the property levied on. On the question, as thus presented, it was, by the Supreme Court of New 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.2 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 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 cieditor having a specific lien upon the goods at- tached ; 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 this right does not depend on the recovery of judgment in the attachment suit, but exists au- 1 Hall V. Stryker, 29 Barbour, 105; Mott, 34 New York, 253; Jacobs v. 9 Abbott Pract. 342. Remsen, 12 Abbott Praot. 390 ; Sdilus- 2 Bentleyy. Goodwin, 15 AbboU Pract. sell v. Willet, Ibid. 397; Thayer v. Wil- 82; Brooks v. Stone, 19 Howard Pract. let, 5 Boswortii, 344; 9 Abbott Pract. 395. 325; Kelly v. Lane. 28 Howard Pract. 3 Hall V. Stryker, 27 New York, 596. 128 ; 42 Barbour, 594 ; 18 Abbott Pract. < Rinchey v. Stryker, 28 New York, 229 ; Mechanics' & Traders' Bank v. 45 J 26 Howard Pract. 75. See Frost v, Dakin, 33 Howard Pract. 316. [186] CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT, § 226 terior to such recovery.^ The position taken by the New York Court of Appeals is substantially held in New Hampshire,^ Con- necticut,^ 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 Rin- chey V. Stryker, I consider it no longer an open question, whether, when an attachment is issued under the Code of Procedure, 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 re- ahzation of the lien, in case the plaintiff should recover a judg- ment."^ But such was not the view of the Court of Appeals, by which it is still held, that an attaching 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 fur- ther, and prove the defendant's indebtedness, and also that the attachment 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 admiuistrator was made a party to the suit as his representative, and judgment was rendered against the administrator, on account of a debt due i Eincliey v. Stryker, 28 New York, 5 Greenleaf v. Mumford, 30 Howard 45; 26 Howard Pract. 75; Tliurber v. Pract. 30; 19 Abbott Pract. 469; 42 Blanck, 50 New York, 80 ; Kelly v. Lane, Barbour, 594. 28 Howard Pract. 128; 42 Barbour, 594 ; « Lawrence v. Bank, 35 New York, 18 Abbott Pract. 229. 320; Tliurber v. Blanck, 5a Ibid. 80. ■'' Angler v. Asli, 6 Foster, 99. See Keubens v. Joel, 3 Kernan, 488 ; 3 Owen V. Dixon, 17 Conn. 492 ; Peck Mills v. Block, 30 Barbour, 549. v.Wliiting.21Ibid. 206; Potter i;. Mather, 7 N„i,le r. Holmes, 5 Hill (N. Y.),194; 24 Ibid. 551. "Van Etten v. Hurst, Ibid. 311 ; Thorn- * Dixon V. Hill, 5 Michigan, 404. burgh v. Hand, 7 California. 554. [187] § 227 a EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VIII. from the intestiite to the attachment defendant ; it was held, that this judgment was not entitled to piiorit}^ 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 the debt of the garnishee to the defendant, than the defendant himself would have had if no attachment had been made.^ § 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 tliat be greater than the sum which the precept of the writ re- quired 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 payable by instalments, one falling due in May, and one in September ; and in the intervening July an attachment was sued out on that which matured in JNIay ; and in the following December the plain- tiff took judgment for both instalments; it was held, that, as against a junior attacher, he could hold only the amount of the May in- stalment, with interest.^ § 227 a. The judgment which the attached propert}j 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 lie appeal therefrom, the defendant is not entitled, pending the appeal, to have the attachment discharged on payment of the part awarded him.* 1 Parker v. Farr, 2 Browne, 331 ; hardly have hesitated to sustain it, as Parker v. Parker, 2 Hill Cli'y, 35. was done in a similar case in Michigan. ■^ Searle v. Preston, 33 Maine, 214. Hale v. Chandler, 3 Michigan, 531. 3 Syracuse City Bank v. Coville, 19 Such a ruling would have been fully Howard Pract. 385. The question does upheld by the cases cited, post, § 282. not appear to have been raised, whether And see Tunnison v. Field, 21 Illinois, the taking of the judgment for more 108; Austin f. Burgett, 10 Iowa, 302. than was sued for did not wholly dis- * Wright v. Rowland, 4 Abbott Ct. of solve the attachment as to subsequent Ajjpeals, Gl'J. attachers. Had it been, the court would [188] CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. § 229 § 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 plaintiif, unless he obtain judg- ment 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 positions before the attachment was levied.^ § 229. An attachment takes precedence of a junior execution ;2 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 subsequent to the other.^ The strength of this doctrine was illustrated in a case in Pennsylvania, under a statute which de- clared that "every writ of attachment executed on real estate shall bind the same against purchasers and mortgagees.'''' On the 18th of January, 1847, an attachment was executed on real estate. In November, 1818, judgment was obtained in the action. In the mean time, several other creditors of the defend- ant sued out attachments, and caused them to be executed on the same real estate ; and in all those cases the defendant con- fessed 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 purchasers 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 1 Clapp v. Bell, 4 Mass. 99; Jolinson ley v. Waflman, 1 Houston, 350; Hus- V. Edson, 2 Aikens, '2!t9 ; Suydani v. bands v. Jones, 9 Bush, 218. Hugiieford, 23 Pick. 4(>5 ; Hale v. Cum- ^ Redus v. Wofford, 4 Smedes & Mar- minK's, 3 Alabama, 398; Lamb v. Bolden, shall, 579 ; American Ex. Bank v. Morris lij Arkansas, 539 ; O'Connor v. Blake, 29 C. & B. Co., 6 Hill (N. Y.), 3U2 ; Martin California, 312. v. Dry den, 6 Illinois (1 Oilman), 1»7; ■^ Goore v. McDaniel, 1 McCord, 480 ; Baldwin ;•. Leftwich, 12 Alabama, 838; Van Loan v. Kline, 10 Johnson, 129; Tappan i-. Harrison, 2 Humphreys, 172; Lummis v. Boon, 2 JV-nninfrton, 7;!4 ; Oldham u. Scrivener, 3 B. Monroe, 579. Pond V. Griffin, 1 Alabama, 678; Beck < Schacklett & Clyde's Appeal, 14 V. Brady, 7 Louisiana Annual, 1 ; Harbi- Penn. State, 326. son V. McCartney, 1 Grant, 172 ; Stock- [189] § 280 EFFECT AND OFFICE OF AN ATTACHMENT. [CHAP. VTII. law, declared inoperative against creditors and purchasers with- out notice, until recorded, the levy of an attachment confers a claim su[)erior to that of an unrecorded mortgage.^ § 230. An altacliment 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 propert}^ under an attachment 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 Hardaway v. Semmes, 38 Alabama, 657. 2 Field V. Milburn, 9 Missouri, 492. 3 Bourne v. llocker, 11 B. Monroe, 23. The following are the views of the court : " The question in this case depends upon the question whether the levy of the at- tachment was lawful while there was an unlevied execution in the hands of an- other officer. For if a constable had a right to levy the process in his hands, we do not perceive how the sheriff could rightfully invade the possession thus lawfully acquired, or take from him tiie property which lie had rightfully taken for the purposes of the writ in his hands, and which by his seizure was placed properly in the custody of the law. It is to prevent such an invasion of posses- sion lawfully acquired under legal pro- cess, to remove all ground for such a struggle between independent officers of the law, and to avoid occasion for conflict between ditterent authorities or tribunals competent to act upon the same party and the same property, that the law has establisiied tiie principle that the first e.xecution of the process in the hands of distinct officers and emanating from dis- tinct and competent autiiorities, shall give the precedence. The fact that in the case of executions in distinct hands, the priority of date is held to be of no [190] force against the priority of actual execu- tion, shows that the principle above re- ferred to, and the objects to be secured by it, are deemed of more consequence than the preservation or existence of the lien existing by delivery of the writ, but which standing by itself is scarcely mure than nominal, and fades into nothing unless followed by an actual legal levy. An attachment is as imperative in requir- ing, and as efficacious in authorizing, a seizure of the defendant's goods as a Jitri facids. And if tlie lien, whatever it be, of the senior execution leaves, while it is unlevied, such property or right in the defendant that a junior execution in distinct hands may not onlj' be levied on it, but may by the first levy appropriate the property to itself, to the exclusion of the senior execution, we do not per- ceive on what ground the unlevied exe- cution, or any lien attaching to it, can repel an attachment, which is a process of equal authority with itself. True, the attachment gives no lien before it is levied. But this is substantially true with respect to the junior execution, as against the older one in the hands of the oflBcer. And it is also substantially true with respect to the older one itself, as against a junior execution in the hands of a distinct officer, acting under a dis- tinct authority. For to say that as be- CHAP. VIII.] EFFECT AND OFFICE OF AN ATTACHMENT. 231 § 231. Unless otherwise directed by statute, attachments take precedence, and are entitled to satisfaction, in the order, in point of time, of their service ;i 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.^ tween them the first levy gains the pre- cedence, is to say tliat as between them there is no lien until there is a levy. It seems impossible to trace this want or annihilation of the lien of each as against the otlier to the fact that each would have a lien but for the other, or that each has a lien except as against the other. If the lien arising from the right to levy were to be regarded, the execu- tion first in hand must prevail. Tlie true ground and principle of the rule applicable to the case seems to be, that the process in the hands of each officer being equally authoritative and equally imperative in its requisition to seize the property of the defendant, and each officer being independent of the other, each has a right and is bound to execute the process in his hands as speedily and as effectually as he can, and tliat the right and authority of eacli being equal, either may rightfully act witliout yielding to the mere authority of the other to act; but that when either has acted under the mandate of iiis process, and has by seizure acquired the possession, and placed the property in the custody or under the authority of the law, the otlier is l)ound to respect this possession and custody. And he cannot afterwards take the prop- erty, because it is no longer in the pos- session or power of the defendant, but has already been taken by competent authority, and is under the power and protection of the law, and because his subsequent seizure of it, while in the lawful possession of the first taker, would be a trespass which he is not authorized to commit. A possession derived from the act of the defendant is of course not thus protected." I Robertson v. Forrest, 2 Brevard, 466 ; Crowninshield v. Strobel, Ibid. 80 Emerson i". Fox, 3 Louisiana, 183 ; Atlas Bank v. Nahant Bank, 28 Pick. 488 Wallace v. Forrest, 2 Harris & JlcHenry 261 ; Talbot v. Harding, 10 Missouri 350 ; Farmers' Bank v. Day, 6 Grattan 360; Greenleaf v. Mumford, 30 Howard Bract. 30; 19 Abbott Pract. 469. •^ Wehle V. Butler, 35 New York Su- perior Court, 215. [191] § 234 ATTACHMENT OF REAL ESTATE. [CHAP. IX. CHAPTER IX. ATTACHMENT OF REAL ESTATE. § 232, It would be inconsistent Avitli 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 de- scriptions 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 pro]3erty, 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 existence within the knowledge of the officer of a sufficiency of the latter, which he might seize, will not invalidate an attach- ment of the former. This was so held, where the statute directed attachments to be served by attaching the goods or chattels of the defendant, or if none could be found, by attaching his per- son or land.^ § 234. Another established principle affects with peculiar fit- ness attachments of real estate, — that the attachment can operate only upon the right of the defendant existing tvhen it is made. If, prior to tlie attachment, he had sold and conveyed the land, in good faith, but the vendee did not put the deed on record un- til afterward, but did so before a sale of the land under execu- 1 Isliam V. Downer, 8 Conn. 282; Weathers v. Mudd, 12 B. Monroe, 112. [102] CHAP. IX.] ATTACHMENT OP REAL ESTATE. § 234 tion, it cannot be held for the debt of the vendor.^ Nor, on the other hand, can an}^ interest which the defendant subsequently acquires be reached by it. This principle was applied in the fol- lowing 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 conveyances, that interest came to be vested in S. In 1835, S. conveyed 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 bought by P., the original obligee in the bond from Massachu- setts. 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 18o6, enured to C.'s benefit, b}' virtue of the various conveyances, with warranty, beginning with that 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 attachment 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 registry, 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 at- tachment, 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 satisfaction 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 ac- quired by the debtor can in any manner be affected by the return thereof, when none was in him at the time. 1 Cox V. Milrier, 23 Illinois, 476 ; Sa- Oesclili, 49 Ibid. 244; Plant v. Smythe, very v. Browning;, 18 Iowa, 240 ; Keeil v. 45 California, 161. Ownby, 44 Missouri, 2U4 ; Sappington v. 13 [193] § 235 ATTACHMENT OF REAL ESTATE. [CHAP. IX. " 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 ob- tain 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 INIassachusetts to P., the attachment would be entirely without effect against him, but the title of the Commonwealth would enure to his benetit 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 lev}' 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 mortgagee of real estate has an attachable interest therein. It has been held in several States, that, before an entry for condition broken, with a view to foreclosure, such interest cannot be taken in sat- isfaction 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 entry, that it becomes attachable, is a question which does not appear to have been distinctly presented for ad- judication, except in Maine. In several opinions, courts had carefully 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 ^ Crocker v. Pierce, 31 Maine, 177. [194] CHAP. IX.] ATTACHMENT OF REAL ESTATE. §235 careful examination, it was decided that the interest of a mort- gagee cannot be attached any more after entry than before.^ i Smith I'. People's Bank, 24 Maine, 185; Lincoln v. Wliite, 30 Ibid. 2'Jl ; Thornton v. Wood, 42 Ibid. 282. The views of tlie court were tiius expressed, in the tirst of tiiese cases : " The result is to be drawn from tlie principles which we have considered, that the breach of the condition in a mortgage in no respect changes the nature of the estate in the respective parties. Notwithstanding such breach, the mortgagor is still considered the owner against all but the mortgagee ; he may sell and convey the fee ; may lease the land, if in possession ; and in every respect deal with it as his own. The equity of redemption remams little, if at ah, artected by an entry of the mort- gagee, after breach of the condition; the rights of the mortgagor are not es^entially impaired till foreclosure. It may be taken on execution against the owner and disposed of as well after as before such entry ; and the interest acquired by the creditor differs in no respect from that whicii he would have obtained, if made betore breach of condition. The mortgagee, by his entry, acquires no ab- solute interest presently, which he would not have done by taking possession be- fore the breacli of the condition. In both cases lie would hold the land subject to redemption, and be obliged to account strictly for tlie net value of the rents and prollls ; if they should be equal to the amount of tlie debt secured by tiie mort- gage, before the expiration of the time necessary to work a foreclosure, the mortgage would be discharged thereby as effectually as by any other mode of pay- ment. Ill the view of a court of equity, the rents and prortts are incidents de jure to the ownership of the equity of re- demption. In no sense can they be the property of the mortgagee, till foreclo- sure. He surrenders no rights which he before possessed by tlie entry. In the language of Chief Justice biiAvv, in Fay V. Ciieiiey, 14 Pick. '6J\), ' tlie entry does little or nothing to change the relative rights of the parties. It lixes the com- nieiicement of three years, the lapse of which, by force of law, if the estate be not redeemed, will work a foreclosure.' Until that takes place, the mortgage is, as before, a security for the debt, and re- mains the personal property of the mort- gagee, passing on his death to tlie executor and not to the heir. No new projierty is added to it by entry, whicli did not pre- viously belong to it, so as to make it liable for the debts of the mortgagee. All the ditticulties and inconveniences, which would result from a levy of an execution upon such an estate, before entry, would exist in even a greater degree afterwards. In addition to the fact that an execution might require but a small part of the land to satisfy it, and several levies might be made by several persons, which would be an embarrassment to the mortgagor, or his representative, if they should wish to redeem, there would be the greater difficulty arising from the rents and prof- its for the value of which the latter would be entitled. In such a case, who would be held to account for them, a part hav- ing been received by the mortgagee, and a part by several creditors, who might claim to succeed to his right as tiie mort- gagee ? Against whom must the mortga- gor bring his bill in equity, that he may be restored to his estate i Was it sup- posed that by the acts of strangers he should be turned from the plain and straight course of seeking his equities from the mortgagee and his assigns ? To whom must the tender be made to entitle the owner of the equity of redemption to the rights secured to him by law .' But a ditiiculty greater than inconveniences presents itself as an insurmountable ob- stacle to the levy upon a mortgagee's right before foreclosure. The mortgage is a ' pledge,' ' a c/iose in uciioii,' ' an acci- dent ' until foreclosure. Such cannot be taken and sold on execution, unless by express statute provision, much less, if possible, can it be the subject of levy by a set-otf If the interest of a mortgagee cannot be taken in satisfaction of an execution, it cannot be the subject of attachment upon mesne process. No attachment can be made, where there is no right of the debtor which is attach- able." See Courtney v. Carr, G Iowa, 238. [195] § 237 ATTACHMENT OF EEAL ESTATE. [CHAP. IX. § 236. The requisites of an attachment of real estate are gen- erally determined by statute. Where, however, that is not the case, the rule Avhich has obtained in Maine, Massachusetts, New York, and Texas, would i:)robably 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 ujdou 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.^ § 237. In making such return, a distinction is taken between the levy of an attachment, which is a mere lien 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 suffi- cient.^ In such case, too, the generality of the description makes no difference, if it be sufficient!}' intelHgible to fix the lien of the process. Id certnm est quod certuni reddi potest, and therefore, if the land be at all intelligibly indicated, the application 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 de- fendant'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 where an officer returned that he had "attached the homestead farm of the defendant, con- taining about thirty acres, more or less ; " tliis was held a suffi- cient description of the farm, althougli in fact it contained about 150 acres ; the statement of the number of acres being rejected as a mistake in the officer, or as repugnant to the more general description." In Massachusetts,^ it was held that an attachment 1 Crosby v. Allyn, 5 Maine, 453; Per- » Taylor v. Mixter, 11 Pick. E41. rin V. Leverett, 13 Mass. 128; Taylor v. * Crosby v. Allyn, 5 Maine, 453. Mixter, 11 Pick. 341 ; Burkliardt v. Mc- ^ Howard v. Daniels, 2 New Hamp. Clfllan, 15 Abbott Pract. 218, note; 1 137; Taylor u. Mixter, 11 Pick. 341. Abbott Ct of Appeals, 263 ; Rodgers v. « Whitaker v. Sumner, 9 Pick. 308. Bonner, 55 Barbour, 0; Hancock v. Hen- See Lanibard v. Pike, 33 Maine, 141. derson, 45 Texas, 479. 1 Bacon v. Leonard, 4 Pick. 277. ^ Wood V. Weir, 5 B. Monroe, 644. 8 pratt v. Wheeler, 6 Gray, 620. [196] CHAP. IX.] ATTACHMENT OF REAL ESTATE. 239 of " all the defendant's interest in any real estate in the county of W." was sufficient; and so in that State ^ and New Hamp- shire ^ 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." « In Missouri this case occurred. An attachment was levied upon the undivided interest of the defendant in "the south half of the south-east quarter of section 17, T. 57, R. 35, containing eighty acres." This 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 be«n sold to third persons, and were occupied by them. 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 tlie service of the writ. By the act of attaching, no estate passes to tlie plain- tiff,^ or to the attaching officer ; i*^ nor is the interest or the posses- 1 Taylor v. Mixter, 11 Pick. .341. « Meuley v. Zeigler, 23 Texas, 88. 2 Moore y. Kidder, 55 New Hamp.488. '' Henry v. Mitcliell, '62 Missouri, 512. 3 Hatliaway v. Larrabee, 27 Maine, ^ Ante, § 207. 449. « Lyon v. Sanford, 5 Conn. 544. * Fitzhugh V. Hellen, 3 Harris & John- '" Scott v. Manchester Print Works, 44 son, 206. New Hamp. 507. * Porter v. Byrne, 10 Indiana, 14G. [197] § 241 ATTACHMENT OF REAL ESTATE. [CHAP. IX. sion of the (lefeiidaiit devested ; nor does the officer or tlie plaintiff acquire any right of possession, or riglit to take tlie issues or profits. It merel_y constitutes a lien, which can be made avail- able to the plaintiff only upon condition that he recover a judg- ment 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 of the debtor, and to stand on as high equitable ground as a mort- gage.'^ 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.^ § 240. It has just been stated, that the levy of an attachment 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 Avithdrew 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 era- sure did not affect the plaintiff's lien on the property.'* § 241. The right to attach real estate extends as well to undi- 1 Taylor I'. Mixter, 11 Pick. 341 ; Scott confess judgment, execution shall be V. Manchester Print Works, 44 New stayed for one year. Ensworth v. King, Hanip. 507 ; Saunders v. Columbus L. I. 50 Missouri, 477. Co., 48 Mississippi, 583. In Missouri, it '^ Carter v. Champion, 8 Conn. 549. was held, that tliis lien is not lost, so as to 3 i_,yon v. Sanford, 5 Conn. 544; give i)riority to a junior judgment, by an Chandler v. Dyer, 37 Vermont, 345. agreement between the attaching plain- * Braley v. French, 28 Vermont, 540. tiff and defendant, that if the latter will [198] CHAP. IX.] ATTACHMENT OF REAL ESTATE. § 242 vided interests as to interests in severalty. Therefore, where land descended to several children, who made partition of it among 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 attacliment created a lien which was not defeated by the partition. 1 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 Hampshire, which arose under the statute of that State, requiring 1 McMeclian v. Griffinj;, 9 Pick. -537. ception to the granting of the same. This '■* Munroe r. Luke, 19 Pick. 39. Shaw, language is broad enough to incUule the 0. J., in delivering tlie opinion of tlie Hen created by an existing attachment, court, said : " The main argument in tlie which, though a contingent interest, is present case is, that the petitioners hav- often a very important one, and e.xtends ing only an attiiciiment on the estate, at to the whole value of the estate. And the time of the partition, they had no though oidy a lien when the action is such interest or estate in the land as to pending, yet when judgment is rendered entitle them to notice. The provision of and execution levied, it relates back, to the statute is, that the court shall not many purposes, to the time of the attach- proceed to order partition, until it shall ment, and especially so tiir as to defeat appear that the several ])ersons interested an^' j/if'.s^p conveyances or incumbrances." have been mit of money_ collected.^ § 247. An interesting question connected with this topic is, ■Nvliether a husband lias an attachable interest in his wife's choses in action, before he has reduced them 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 payment of his debts. Such are the views expressed in Massachusetts, Maryland, DelaAvare, Virginia, and Missouri.^ It is, however, admitted, that if the husband die pending an attach- ment of his interest, and before the same is finally subjected to his debt, the attachment will fail, because of the wife's right of survivorship.^ On the other hand, it is considered, — in the lan- guage of the Supreme Court of Pennsylvania, — "that though marriage is in eifect 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 in- testacy. 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 ob- ject? Not his creditors ; for they have no right to call on him 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 1 Maxwell v. McGee, 12 Cushing, 137. Fleetwood, 1 Harrington, 442 ; Babb v. ' Shuttleswortli v. Noyes, 8 Mass. Elliott, 4 Ibid. 456 ; Vance f. McLatiglilin, 229 ; Commonwealth f. Manley, 12 Pick. 8 Grattan, 289; Hoekaday v. Sa lice, 26 173; Holbrook v. Waters, 19 Ibid. 354; Missouri, 219. Wliecler r. Bowen, 20 Ibid. 563 ; Smmg " Strong v. Smith, 1 Metcalf, 476; r. Smith, 1 Metcalf, 476; State «. Krebs, Vance v. McLaughlin, 8 Grattan, 289; 6 Harris & Johnson, 31 ; Peacock v. Hoekaday v. Sallee, 26 Missouri, 219. Pembroke, 4 Maryland, 280 ; Johnson v. [210] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 248 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 ai^proximation 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 ; ^ 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 de- cision 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 de- livery to the cotenant.^ The doctrine stated in this section applies to cases other than partnerships ; concerning which there is much diversity of decision. 1 Dennison v. Nigh, 2 Watts, 90; Reed v. Howard, 2 Metcalf, 36; Law- Robinson V. Woelpper, 1 Wharton, 179. rence v. Burnham, 4 Nevada, 361 ; Wald- '■^ Marston v. Carter, 12 New Hamp. man v. Broder, 10 CaHturnia, o78 ; Ber- 159; Wheeler v. Moore, 13 Ibid. 478; nal v. Ilovious, 17 Ibid. 541; Veacli v. Pickering v. Wendell, 20 Ibid. 222; Parks Adams, 51 Ibid. 609. r. Cusiiman, 9 Vermont, 320; Short v. ^ Sibley v. P'eruie, 22 Louisiana Au- Moore, 10 Ibid. 416 ; Probate Court v. nual, 163. Niles, 32 Ibid. 775; Arrington y. Screws, « Merscreau v. Norton, 15 Johnson, 9 Iredell, 42; Pressley v. McDonald, 1 179; Ladd v. Hill, 4 Vermont, 164; Richardson, 27 ; Godbold i;. Bass, 12 Veach n. Adams, 51 California, 609. Ibid. 202. ' Sibley v. Pernie, 22 Louisiana An- 3 Buddington v. Stewart, 14 dmn. nual, 163. 404 ; Marion v. Faxon, 20 Ibid. 486 ; « Ladd v. Hill, 4 Vermont, 164 ; Brad- Walker V. Flits, 24 Pick. 191; GoU v. ley v. Arnold, 16 Ibid. 382; White v. Ilinton, 7 Abliott Tract. 120, overruling Morton, 22 Ibid. 15 ; Melville v. Brown, Stoutenburgh v. Vandenburgh, 7 Howard 15 Ma.ss. 79; Kldridge r. Lancy, 17 Pick. Pract. 229, and Sears v. (Jearn, Ibid. 352; Walker i;. Fitts, 24 Ibid. I9l. 383. " Frost v. Kellogg, 23 Vermont, 308. * Remmington v. Cady, 10 Conn. 44 ; [211] §249 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. § 24'K AVliere property is of sucli nature that an attachment of it would produce a sacrifice and great injury to the defendant, without benefiting the phiintiff, 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 peculiarlj^ perishable, that, manifestly, the pur- pose of the attachment cainiot be effected before it will deca}' and become worthless ; as, for instance, fresh fish, green fruits, and t4ie like.* And it has been held, that a growing crop of grass cannot be attached.''' 1 Oystead v. Shed, 12 Mass. 506. 2 Bradford v. Gillaspie, 8 Dana, 67 ; Oystead v. Slied, 12 Mass. 500. 3 Oliors V. Hill, 3 McCord, 338. It is very doubtful vviietlier tlie exemption of boolis of accounts and negotiable securi- ties from direct attachment is not fraught with evil, as it affords an abundant oppor- tunity for fraudulent conceahnent of means which 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 col ects them, and applies 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 effects 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 examine attached books and papers, and take copies of business letters, and look into the correspondence of the defendant, or 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 [212] process of the court ; and the court or- dereil the books and papers attached to be kept under lock and key, without power on the part of any one, except the defendant, to examine them ; and re- quired the officer to deliver up to the defeiulant's counsel all copies taken by him, and to make oath at the time of tiie delivery, that such copies embraced all that the officer believed to exist ; and ordered that the plaintiff's counsel should be restrained from using, in any way, the books and papers attached, or dis- closing their contents, or the contents of copies taken from them. Hergman v. Dettlebach, 11 Howard Pract. 46. * Wallace v. Barker, 8 Vermont, 440. In Penhallow v. Dwight, 7 Mass. 34, it was held, that an entry on land for the purpose of levying an execution on unripe corn or other produce, whicii would yield nothing, but in fact be wasted and de- stroyed by the very 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 the har- vest. Heard v. Fairbanks, 5 Metcalf, 111. 5 Norris v. Watson, 2 Foster, 364. It was, in Massachusetts, sought to estab- lish the rule that hay in a barn could not be attached, because of tiie difficulty of removing it without loss, and of identify- ing it ; but the court refused to sustain that position. Campbell v. Johnson, 11 Mass. 184. And in the same State it was held, that tobacco stored in barns, hanging on poles, in process of curing, might be attaclied, though in such a con- CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 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 dougli ; 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 com- mand or assent.^ § 251. Property in 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 held by a collector of the revenue of the United States, to en- force payment of, or as security for, the duties thereon, are not attachable by a creditor of the importer.*^ So, a ship in the (lition that it could not be moved witliout ' Hale v. Huntly, 21 Vermont, 147. great damage. Cliesliire Nat. Bank v. * Post, § 267. Jewett, 11!) Mass. 241. ' Roberts v. I')unn, 71 Illinois, 46. See 1 Bond V. Ward, 7 Mass. 12-3. Thompson v. Marsh, 14 Mass. 269. 2 Wilds V. Blancliard, 7 Vermont, 138. « Harris v. Dennie, 3 Peters, 2'J2. [•J13] /\ § 251 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. 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 by an ofiieer of a United States court be taken out of lu"s liauds by an officer under process issued by a State court.^ If, however, an officer in possession of c^oods under a levy, consents that an- other officer levy an attachment theretdT, but without disturbing his possession, and agrees that, after satisfaction of his claims, he 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, Avhile 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 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,'^ cannot be attached. So, of money paid into court.^ 1 The Robert Fulton, 1 Paine, 620; Johnson, 421; Jones v. Jones, 1 Bland, Tlie Oliver Jordan, 2 Curtis, 414 ; Taylor 448 ; Blair v. Cantey, 2 Speers, 34 ; Bur- V. Carryl, 24 Penn. State, 250, and 20 rull v. Letson, 1 Strobhart, 239 ; Clymer Howard Sup. Ct. 583. See Metzner v. v. Willis, 3 California, 3G3. These au- Grahani, 57 Missouri, 404. thorities bear on the question of seizing ■'' Freeman y. Howe, 24 Howard Sup. the money i/i s^ime. For those applicable Ct. 450 ; Moore v. Withenburg, 13 Loui- to an atteini)t to reach it by garnishment, siana Annual, 22; Lewis v. Buck, 7 Min- see post, § 506. nesota, 104. ^ Orr v. McBride, 2 Carolina Law Re- •* Davidson v. Kuhn, 1 Disney, 405. pository, 257 ; Watson v. Todd, 5 Mass. * Turner v. Fendall, 1 Cranch, 117; 271; Davidson v. Clayland, 1 Harris & Prentiss f. Bliss, 4 Vermont, 513; First Johnson, 540; Tucker v. Atkinson, 1 V. Miller, 4 Bibb, 311 ; Dubois v. Dubois, Humphreys, 300. 6 Cowen, 494 ; Crane v. Freese, 1 Ilarri- '' Ross v. Clarke, 1 Dallas, 354 ; Alston son, 305; Dawson v. Holcombe, 1 Ohio, v. Clay, 2 Haywood (N. C), 171. 135 ; Reddick v. Smith, 4 Illinois (3 Scam- ■" Hunt v. Stevens, 3 Iredell, 365, mon), 451 ; Tiiompson v. Brown, 17 Pick. * Farmers' Bank, v. Beaston, 7 Gill & 462 ; Conant v. Bicknell, 1 D. Chipman, Johnson, 421. 50; Farmers' Bank i;. Beaston, 7 Gill & [214] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 251 So, of property in 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.2 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 propert}^ cannot be attached by another creditor.* So, it has been held, that garnishment has the effect to place the property in the garnishee's hands 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, yet 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 be released from the attachment, and delivered to the receiver." 1 Elliott I'. Newbj-, 2 Hawks, 21 ; '' Paradise v. Farmers and Merchants' Youns r. Young, 2 Hill (S. C), 425. Bank, 5 Louisiana Annual, 710. The ' Thornliill r. Christmas, 11 Robinson court said: "The property which thus (La.), 201. stands before us for adjudication appears 3 Hale V. Duncan, Brayton, 132; Ross to have been brought within the jurisdic- V. Edwards, 52 Georgia, 24. tion of this court in disobedience and in * I'erego r. Honcsteel, 5 Bissell, 60. violation of the process of a court of a 5 Scholefield v. Bradlee, 8 Martin, 405 ; sister State, and in frau?'/ facias.' The main ground on which these and other authorities rest is, that it would tend [218] directlj' to a collision and breach of the peace, if articles thus situated were al- lowed to be taken from the hands of a debtor. Gorton v. Falkner, 4 T. R. 565 ; Storey v. Robinson, 6 T. R. 139 ; Adames r. Field, 12 Ad. & El. 649, and 4 Perry & Dav. 504; Com. Dig. Distress, C. ; Gilbert on Distresses, 43. There are many articles of personal property, sub- ject to attachment under our laws and usages, wliich could not have been dis- trained or taken at common law under the rule as stated in the earliest author- ities. Potter V. Hall, 3 Pick. 368. But in the absence of any proof of usage or custom in this State, from which it might be inferred that a different rule of law has ever been adopted, the present case falls within the principles on which the Englisii authorities rest, and must be governed by them. " The watch, at the time it was taken by the defendant, was in the plaintiff's actual possession and use, worn as part of his dress or apparel, and was severed from his person by force. Such an act, if permitted, would tend quite as directly to a breach of the peace as to take from a man the horse on which he was riding, or the axe with which he was felling a tree. It is indeed a more gross violation of the sanctity of the person, anil tends to a greater aggravation of the feelings of the debtor. Nor would it be practica- ble to place any limit to the exercise of such a right. If allowed at all, it must extend to every article of value usually worn or carried about the person ; if an officer can sever a silken cord, he may likewise break a metallic chain ; if he can seize and take a watch, so he may wrest a breastpin or ear-ring from the person, or thrust his hand into tiie pocket and carry off money; he may, in short, resort to any act of force necessary to enable him to attach property in the per- sonal custody of the debtor. It is obvi- ous that such a doctrine would lead to consequences most dangerous to the good order and peace of society. " It is no answer to this action that the defendant tendered to the plaintiff the value of the cord by which the 4 CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 253 a he may attach it under writs subsequently coming into his hands. ^ § 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 New 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 rolliiig stock of a railroad.^ But where^an ofSHr'atta^ed amailw^^ horses_which were at .tlb^e time in use upon the mail route in carrying the mail, the attach- ment waslield to"be a violation of the law of the United States agaiust-obstrtTCttiigTlie passage of the mail, aiid 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 watch was attached to the person, or In Massachusetts the question was raised that tlie watch itself, detaclied from tiie whether tiie boat, cabk-, and anclior of a person, was subject to attaciinient. The vessel could be attaclied and separated wrong consists in having taken an article from the vessel. The court said that from tlie person of the plaintiff, wiiich this might depend upon the situation of was at tlie time by law exempted from those articles in relation to the vessel, attachment. The mode in whicii it was If taken when in use and necessary to done is wholly immaterial. He is liable her safety, the taking would subject the for tlie value of the watch, being a tres- party taking them to damages. But if passer ab initio. 'No lawful thing, the vessel were at a wharf, and her cable founded on a wrongful act, can be sup- and anchor and boat not in use, there ported.' Luttin v. Benin, 11 Mod. 50; was no reason why they migtit not as Ilsley V. Nichols, 12 Pick. 270. The well be taken as the harness of a carriage, watch, although liable to attachment if or the sails and rigging of a vessel when it had been taken by tiie defendant when separated from tlie hull and laid up on not connected with the person of the plain- shore. Briggs v. Strange, 17 Mass. 405. tiff, was wrongfully seizcil, and cannot ^ Boston, C. & M. 11. II. Co. v. Gil- now be held under the attachment." more, 37 New Hamp. 410. 1 Closson V. Morrison, 47 New Ilamp. * Harmon v. Moore, 50 Maine, 428. 482. ^ Graighle v. Notnagle, Peters, C. C. 2 Parker v. Porter, G Louisiana, 1G9. 245 ; Livingston v. Smith, 5 Peters, 90. [219] § 254 ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. and ijliouUl be attached as sucli.^ If an officer omit to attach it Avhen so found, and when its attachment is necessary for the phiintiff's securit}', lie cannot be excused, unless he prove that, notwithstanding such appearances, the property was not in fact the defendant's, — in wliicli case the burden of proof rests upon the officer ; or unless, wliere there were reasonable grounds to suspect tliat tlie defendant was not the owner, the plaintiff re- fused — what the officer in such cases lias always a right to de- mand ^ — to indemnify the officer for any mistake lie 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, at- taches tlie goods as the property of him to whom the owner repre- sented them to belong; and the owner ])ring trover for the goods; he is esto])ped 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 ownei'ship, 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 father to reside and labor there ; the products of the farm were held not sul)ject to attachment for the father's debts." So, where one de- livers 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 Killey v. Scannell, 12 California, Ti. * Wolfe v. Dorr, 24 Maine, 104. 2 Bond V. Ward, 7 Mass. 1-23 ; Sibley ^ Horn i\ Cole, 51 New Hamp. 287. V. Brown, 15 Maine, 185; Smith v. ^ Moon v. Hawks, 2 Aikens, 390; Cicotte, 11 Michigan, 383; Ranlett v. Walcot y. Ponieroy, 2 Pick. 121. Blodgett, 17 Nevv Hamp. 2'.}8; Chamber- "^ Brown v. Scott, 7 Vermont, 57. lain y. Beller, 18 New York, 115. ^ Stevens v. Briggs, 5 Pick. 177; 3 Bradford v. McLellan, 23 Maine, 302. Gallup v. Josselyn, 7 Vermont, 334. 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 equall}' the avails of the first attachment. Hence the necessity that the officer should proceed at once with the ex- ecution 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 con- tinue the execution of the process, with as little intermission as possible, until his duty is completed. § 255 a. What will constitute a levy as against the defendant, is a different question fi-om 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 b}' positive or nega- tive acts, may amount to a waiver, or an estoppel, or agreement 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 defendant, 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 personalt}^ must actually reduce it to possession, so far as, under the circumstances, can be done ; ^ though in doing so, it is not necessary that any notoriety should 1 Ante, § 221. Rood, 12 Vermont, 233 ; Taintor v. Wil- * Ante, § 231 ; Crowninshield v. Stro- Hams, 7 Conn. 271 ; Hollister v. Goodale, bel, 2 Brevard, 80; Robertson y. Forrest, 8 Ibid. 332; Odiorne v. CoUey, 2 New Iljid. 4G(i ; Bethune v. (iilison, Ibid. 501; Hanip. Oti; Huntington v. Blaisdell, Ibid. Crocker y. Radclille, 3 Ibid. 23. 317; Dunklee v. Fales, 5 Ibid. 527; 3 Taffts y. Manlove, 14 California, 47. Bryant v. Osgood, 52 Ibid. 182; Ciiad- * Beeknian v. Lansing, 3 Wendell, bourne v. Sunnier, 16 Ibid. 129 ; Blake 446; VVestervelt r. Pinkney, 14 Ibid. v. Ilatcli, 25 Vermont, 655; Gale v. 123; Camp v. Cliamberiain, 5 Denio, Ward, 14 Mass. 352 ; Stockton y. Downey, r.)8 ; (joode v. Longmire, 35 Alabama, 6 Louisiana Annual, 581 ; VVoodwortli v. 608; McBurnie y. Overstreet, 8 B. Mon- Lemmerman, "J Ibid. 524; Learned v. roe, 300; Allen u. McCalla, 25 Iowa, 464. Vandenburgli, 7 Howard Pract. 379; * Lane v. Jackson, 5 Mass. 157 ; Ash- Gates v. Flint, 39 Mississippi, 365; Smith niun V. Williams, 8 Pick. 402; Lyon v. v. Orser, 43 Barbour, 187. [221] § 256 ATTACHIMENT OF PERSONAL PROPERTY. [CHAP. X. be given to tlie act, in order to make it effectual.^ What is an actual possession, sufficient to constitute an attachment, must de- pend ui)on the nature and position of the property. In general, 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 prop- erty, 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 harness 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 de- livered to the purchaser. Hence, the legal doctrine is firmly es- tablished, that to constitute an attachment of goods the officer must have the actual j^ofisession and custody/. That the plaintiff was at the door of the carriage-house, with a writ of attachment in liis hand, only proves an intention to attach. To this, no ac- cession is made by the lawful possession of the key, and the un- locking of the door. Suppose, what does not appear, that the key was delivered to him by the OAvner of the carriage, that he might attach the property ; this would be of no account. He might have the constructive possession, which, on a sale, as between vendor and vendee, would be sufficient ; but an attachment can only be made by the taking of actual possession. As little impor- tance 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. The re- moval of an obstacle from the way of attaching, as the opening 1 Hemmenway v. Wheeler, 14 Pick. 2 Hemmenway v. Wheeler, 14 Pick. 408 ; Toiiilinsoii v. Collins, 20 Conn. 304. 408. [222] CHAP. X.] ATTACHMENT OF PEESONAL PROPERTY. § 256 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 conjointly, the plain- tiff 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 an}'^ 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 thera.^ In a subsequent case in the same State, where an officer was in a house levying an attachment on furniture, and anolher officer entered a chamber of the house not yet reached by the first, and attached the articles therein, the court held the pro- ceedings 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 : " Tlie whole articles must doubtless be within the power of the officer. That is, they must not be in- accessible to him by their distance, or by being locked up from his reach in an apartment not under his control ; or by being so ' Ilollister v. Goodale, 8 Conn. 332. ^ Oiliorne v. Colloy, 2 New Ilanip. 66 ; 2 Nichols V. Patten, 18 Maine, 231. Morse v. liurd, 17 Ibid. 240. [1>23] . § 'loij ATTACHMENT OF PERSONAL PROPERTY. [CHAP. X. covered with oilier articles, or bo in the custoil}' of another per- son, that the officer cannot see and touch theni."^ 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 the}' 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.^ 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 careless!}'' failed to secure every avenue to the room, and through one unguarded avenue another officer entered and seized the property.* In Massachusetts, the necessity for an actual handling of the property 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 suf- ficient attachment of the goods in the store, and valid against a subsequent attachment or mortgage thereof.^ 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 i> and 4, P.M., three writs of attachment came to his hands against the same party, under which he then made inven- tories 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 ad- mitted that the constable did not take any of the personalty of the defendant under or by virtue of any of the writs of attach- ' Huntington v. Blaisdell, 2 New v. Gooclale, 8 Conn. 332, is severely eon- Hanip. 317 ; Cooper v. Newman, 45 Ibid, deinned. 33y. ■• Newton v. Adams, 4 Vermont, 437 ; - Dunklee v. Fales, 5 New Hamp. Slate u. Barker, 26 Ibid. (547. 527. ^ Denny v. Warren, 16 Mass. 420; 3 Lyon V. Rood, 12 Vermont, 233. In Gordon c. Jenney, Ibid. 465; Sliepliard v. this case the above-cited case of Holiister Butterfield, 4 Cusliing, 425; Naylor v. Dennie, 8 Pick. US. . [224] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 256 ment which came to his hands, unless the making of the inven- tories under those writs amounted in hiw 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 liands of the sheriff, the first at 6, P.M., and the oth- ers 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, ivitli a view to the appraisement 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 attach- ments.^ 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 sul)ject 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 any person from coming into the store, he had levied on the contents, whatever they were, of the store ; and 1 Stockley v. Wadman, 1 Houston, 350. 15 [225] § 258 ATTACHMENT OP PERSONAL PROPERTY. [CHAP. X. this without having' any knowledge of the general nature of the stock, much less of the particular description or value." ^ § 257. In all such cases, however, if the officer have not the property under his control, or, so having, he aljandon it, the at- tachment is lost. Tlierefore, 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 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, tliat, 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 haj'^ 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 declar- ing that he attached them ; and placed them in charge of the plaintiff, 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, were 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- 1 Taffts 0. Manlove, 14 California, 47. 408 ; Polley v. Lenox Iron Works, 4 2 French v. Stanley, 21 Maine, 512. Allen, 329 ; Lewis v. Orplieus, 3 Ware, » Merrill v. Sawyer, 8 Pick. 397. 143. * Hem men way v. Wheeler, 14 Pick. [226] CHAP. X.] ATTACHMENT OF PERSONAL PROPERTY. § 258 a missed, and the defendant's operations ceased, and the facts be- came 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 with the property, in person or by agent, is not necessary ; it be- ing sufficient if he exercise due vigilance to prevent its going out of his control.^ 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.^ § 2.58 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 attachment 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, » Mills V. Camp, 14 Conn. 219; Pond 2 Heard v. Fairbanks, 5 Metcalf, 111. V. Skidmore, 40 Il)id. 213; liicknell v. Trickey, 34 Maine, 273. [227] § 259 ATTACHMENT OF TEESONAL PEOPERTY. [CHAP. X. bark, and luniLer, 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 tiie 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 purchaser of the hay. " B}^ the statute," said the court, "a public record of the return of the property attached is made a substi- tute for the retention of possession by the officer or his agent, and its jiurposes would not be subserved, nor its spirit maintained, by any such effort at compliance with the terms of the statute, or b}' any such construction of its provisions, as should fail to furnish a subsequent attaching creditor, or a purchaser of the propert}' from the debtor, substantially and practically the same information as would be derived from knowledge of the officer's retention of possession at common law." ^ § 259. The rule requiring the officer to reduce to his possession 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 sufficient 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 par- ticular stock owned by the defendant, and a sale by such a de- scription will carry the title.- 1 Bryant v. Osgood, 52 New Hanip. 2 Stamford Bank v. Ferris, 17 Conn. 182. 259. [228] CHAP. XI.] SIMULTANEOUS, ETC, ATTACHMENTS. § 260 CHAPTER XL 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 phiced, 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 intervals. As such cases usually occur when the defendant is in failing cir- cumstances, 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 important to as- certain the rules which are to decide between interests 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 creditors of the defendant who come in and prove their demands, and therel)y 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. § 260 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, placed in his hands. Meantime, in the attorney's absence, and while the clerk was engaged in preparing A.'s writ, the attorney [•229] § 260 a SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. 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 lien 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 defendant.^ 1 Lick V. Madden. 36 California, 208. Tlie court said : " Wiiile a clerk is bound to issue writs in the order in which tliey are demanded, yet if the party who makes the prior demand is not in attendance to receive his writs as soon as they are ready for delivery, the clerk is not bound to de- lay the issuing of other writs against the same party which may have been de- manded in the mean time. On the con- trary, such delay would not admit of legal justification. Having prepared for deliv- ery the writs first demanded, he is bound, notwithstanding the absence of tlie party by wliom they have been demanded, to proceed with reasonable diligence to comply with the demand of the next comer ; and if the writs of tlie latter are ready before the former calls for his, he is nevertheless bound to deliver them as soon as they have been prepared. If in such a case the first comer loses his pri- ority, such loss is due, as the case may be, to his own negligence or misfortune. If, however, as is found in this case, the clerk first issues tlie writ secondly de- manded, he is, doubtless, in any event, guilty of a technical breach of his official duty; but if, notwithstanding such breach, he has tlie writ first demanded prepared and ready for delivery when it is called [23U] for, we are unable to perceive how tlie party by whom it was demanded has been injured by the breach. The fact tliat suf- ficient time has elapsed to enable tlie clerk to prepare both writs, and deliver the second before the first is called for, shows that had he strictly followed the line of his duty, and pi-epared the writs in the order in which they were demanded, the delivery of the second writ would have been likewise consummated before the first was called for. Such being the case we think it clear, that the loss to A. of the first lien upon the goods of B., was not due to the omission of the clerk in not completing his writ before issuing that of C. Had, however, A.'s attorney returned before sufficient time had elapsed to enable the clerk to issue and deliver both writs, the contrary result would have followed. . . . That public officers should be held to a faithful performance of their official duties, and made to answer in dam- ages to all persons who may have been injured through their malfeasance, omis- sion, or neglect, to which the persons injured have in no respect contributed, cannot be denied. But it is equally true that if the result complained of would have followed notwithstanding their mis- conduct, or if the injured party himself CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 262 § 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 lieu acquired by the latter.^ § 262. The rights of attaching creditors, who, as against their conunon 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 afford him relief ; where the equities are equal ; and where the right must be governed by the rule of law.^ 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 phiintiff 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 subsequent attachers. Hence it was held in Vermont, that a confession of judgment by the defendant, anterior to the time when the action would have been regularly triable,"* or an appear- contributed to tlie result in any degree by it is lield, tliat among all the attachments his own fault or neglect, they cannot be which go into the sheriffs hands, and held responsible. If tlie position of the are executed, on the same day, there is injured party would have been just the no preference. Yelverton v. Burton, 26 same had not the alleged misconduct oc- Penn. State, 351. curred, he lias no legal ground of com- ^ guydam v. Huggeford, 23 Pick. 465. plaint; and if his own conduct, or the See Southern Bank v. McDonald, 46 conduct of his attorney, contributed to Missouri, 31 ; Alley v. Myers, 2 Tennes- tlie result, he is in pari delicto, and the see Ch'y, 206. law leaves him where it finds him." ^ Stone v. Miller, 62 Barbour, 430. ' Tufts V. Carradine, 3 Louisiana An- * Hall v. Walbridge, 2 Aikens, 215. nuai, 430. In Tennsylvania, however, [231] § 263 SIMULTANEOTJS, SUCCESSIVE, CONFLICTING, [CHAP. XI. aiice 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 byjndgment and execution, he acquired no title to the property.^ It will be remarked, 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 that, 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.^ § 263. Neither the issue of an attachment,* nor its lodgment in the liands of an officer,^ confers any rights upon the plaintiff in the defendant's property. It is only when the writ is served, that, as between plaintiff and defendant, and generally as be- tween 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 propor- 1 Murray v. Eldridge, 2 Vermont, 388. Bowie, 6 Munford, 176 ; Wallace v. For- - Brandon Iron Co. v. Gleason, 24 rest, 2 Harris & McHenry, 201. Vermont, 228 ; Cole v. Wooster, 2 Conn. ' Crowninsliield v. Strobel, 2 Brevard, 203. 80; Robertson v. Forrest, Ibid. 466; 3 Kincaid v. Neall, 3 McCord, 201; Bethune f. Gibson, Ibid. 501 ; Crocker v. Cambertord v. Hall, Ibid. 345 ; MctBride Radcliffe, 3 Ibid. 23. y. Floyd, 2 Bailey, 209 ; Van Arsdale v. « Gates v. Bushnell, 9 Conn. 530; Kruni, y Mit^souri, 397 ; Walker f. Hob- Sewell v. Savage, 1 B. Monroe, 260; ens, 4 Kiulianlson, 561; Ball v. Clafflin, Nutter v. Connett, 3 Ibid. 199; Fitch v. 5 Pick. 303 ; 7?^ le Griswold, 13 Barbour, Waite, 5 Conn. 117; (Crowninsliield v. AVI; Bank of Augusta v. Jauilon, 9 Strobel, 2 Brevard, 80; Robertson v. Louisiana Annual, 8; Isliam i\ Ketclium, Forrest, Ibid. 466; Betliune v. Gibson, 46 Barbour, 43 ; Ward v. Howard, 12 Ibid. 501 ; Crocker v. Radclitfe, 3 Ibid. Ohio State, 158; Rudolf r. McDonald, 23; Pond v. Griffin, 1 Alabama, 678; 6 Nebraska, 163; Fridenburg v. Pierson, McCobb v. Tyler, 2 Crancli, C. C. 199; 18 California, 152. Grigsley w. Love, Ibid. 413; Burkhardt * Alears v. Winslovv, 1 Smedes & r. McClellan, 15 Abbott Pract. 243, note; Marshall, Ch'y, 449 ; Williamson v. Tafi'ts v. Manlove, 14 CaUfornia, 47. [•232] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 264 tion to the amount claimed under eacli 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 approj^riated 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, l)ut served together.^ In Kentucky, however, it was determined, that, though in the case of distinct officers, the first lev}' gives the prior lien, yet where several at- tachments 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.'^ § 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 the 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.^ § 264. Where different writs are in the hands of the same offi- 1 Sliove V. Dow, 1-3 Mass. 529; Sig- Freeman v. Grist, 1 Devereux & Battle, ouriiey v. Eaton, 14 Pick. 414; Hock- 217; Porter w. Eartli man, 4 Yerger, 358 ; wood V. Varnum, 17 Ibid 28'.> ; Durant Love i\ Harper, 4 Uum])lireys, 113. V. Jolmson, I'J Ibid. 544; Davis v. Davis, - Shove v. Dow, 13 Mass. 52U. 2 Cusbing, 111; Tburston v. Iliintiiigton, ^ Hockwood v. Varnum, 17 Pick. 289. 17 New llamp. 438 ; Campbell v. Huger, * Kennon v. Ficklin, 6 B. Monroe, 1 ("owen, 215; Nutter v. Connett, 3 B. 414; Claj' w. Scott, 7 Ibid. 554. See Monroe, 19'J. Tbis rule, however, docs Cailalian r. IlallowcU, 2 Bay, 8; Tliurston not obtain in Nortii Carolina and Ten- v. Huntington, 17 New llanip. 438. nessee, where the distrii>ution is made * Howard v. Clark, 43 Missouri, 344. liro rata. Hill v. Cliild, 3 Devereux, 205; [233] § 265 a SniULTANEOUS, successive, conflicting, [chap. XT. cer, tliere need be no difficulty in ascertaining whether their service was simultaneous ; but when different officers are em- ployed, 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 re- turn, 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 presump- tion, 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 the return the ser- vice was in fact made ; such evidence being regarded as entirely consistent with the return.-"^ In a similar case, Avhere an officer returned an attachment as made at 12 o'clock, noon, on a certain day, it was considered prior in point of time to another attach- ment returned as made on the same day, indefinitely, without speci- fying any particular hour. And it was held in that case, that no amendment of the latter return was admissible, which would de- stroy or lessen the rights of third persons previously acquired.* § 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 in- dicate the order in which he served them, by returning his attach- ment under one as subject to an attachment under another ; and 1 Shove u. Dow, 13 Mass. 529. * Fairfield v. Paine, 23 Maine, 498; 2 Ginsberg v. Pohl, 35 Maryland, 505. Taylor v. Emery, 16 New Hamp. 359. 1 Brainard v. Bushnell, 11 Conn. 16. See Bissell v. Nooney, 33 Conn. 411. [234] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 26T 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 property in them, and they are in the custody of the law, and it would intro- duce confusion to admit of several officers contending for the pos- 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.^ 1 Tliurston v, Huntington, 17 New 16 Vermont, G19 ; West River Bank v. Hamp. 438. Gorliani, 88 Ibid. 649; Lathrop v. Blake, 2 Lyman v. Dow, 25 Vermont, 405. 3 Foster, 46 ; Benson v. Berry, 55 Bar- ^ Ante, § 251 ; Watson v. Todd, 5 bour, 620 ; Oldiiam v. Scrivener, 3 B. Mass. 271 ; Vinton y. Bradford, 13 Ibid. Monroe, 579; Robinson v. Ensign, 6 114; Burlingame v. Bell, 16 Ibid. 318; Gray, 800; Harbison v. McCartney, 1 Odiorne v. Colley, 2 New Ilamp. 66; Grant, 172; Beers v. Place, 36 Conn. Moore v. Graves, 3 Ibid. 408 ; Walker v. 578. Foxcroft, 2 Maine, 270; Strout v. Brad- * Vinton v. Bradford, 13 Mass. 114. bury, 5 Ibid. 313; Burroughs v. Wright, ^ Thompson v. Marsh, 14 Mass. 269. [235] § 269 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. § 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, there 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 justiiiable, so far as the defendant is concerned, and the first officer is not liable over to the defendant for the property.^ § 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 In Hagan v. Lucas, 10 Peters, 400, prop- ' Goodrich v. Churcli, 20 Vermont, erty liad heen levied on under execution 187. by a sheriff in Alabama, and claimed by - Turner v. Austin, 16 Mass. 181; a third person not a party to tlie execu- Tondiiison v. Collins, 20 Conn. 364; tion, who gave bond to redeliver it to the Rogers v. Pairfield, 86 Vermont, 641. sheriff when the title had been tried; ^ Knap v. Sprague, 9 Mass. 258; and it was held to be so in the custody Whittier v. Smith, 11 Ibid. 211 ; Odiorne of the law, that it could not, while in v. Colley, 2 NewHamp. 66; Whitney y. that condition, be taken under execution Farwell, 10 Ibid. 'J; Tomlinson v. Col- by the marshal of a United States court. Uns, 20 Conn. 364. See Roberts v. Dunn, 71 Illinois, 46. [236] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 2 < 2 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 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, where 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.^ § 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 to 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- 1 Hoy V. Eaton, 26 Louisiana Annual, * Cliaflbourne v. Sumner, 16 New 169. Hanip. l'2t). '-' Burlingame v. Bell, 16 Mass. 318; ^ Bajrley v. White, 4 Pick. 395; Young Swett V. Brown, 5 Pick. 178. v. Walker, 12 New Hamp. 502; Mor.se v. 3 Kockwood V. Varnum, 17 Pick. 289. Smith, 47 Ibid. 474. 6 Bruce v. Holden, 21 Pick. 187. [237] § 274 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. ence, where the propert}^ of a debtor is insufficient to satisfy all the attachments issued against him. When it transpires that there are circumstances justifying resort to this remedy, the creditors of an individual usually press forward eagerly in the race for prece- dence, sometimes to the neglect of important forms in their pro- ceedings, and sometimes without due regard to the rights 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 de- mands. There is, therefore, a necessity — apparent to the most superficial observation — for some means by which all such at- tempts to overreach and defraud, through the instrumentality of legal process, may be summarily met and defeated. Hence pro- vision has been made in the statutes of some States for this ex- igency ; 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 sul)sequently attaching creditor take ad- vantage of any waiver made by the attachment defendant, which causes no substantial injustice to such creditor.^ But where an at- tachment 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, that a junior attacher could not impeach a judgment obtained 1 Ante, § 262. 412 ; Isliam v. Ketchum, 46 Ibid. 43 ; '^ Kincalil v. Neall, 3 McCord, 201 ; Bank of Augusta v. Jaudon, 9 Louisiana Camberford v. Hail, Ibid. 345; McBride Annual, 8; Fridenburg v. Pierson, 18 V. Floyd, 2 Bailey, 209; Van Arsdale v. California, 152; Ward v. Howard, 12 Krum, 9 Missouri, 397 ; Walker v. Rob- Ohio State, 158 ; Rudolf v. McDonald, erts, 4 Richardson, 501 ; Ball v. Claflin, 6 Nebraska, 163. 6 Pick. 303 ; In re Griswold, 13 Barbour, » Rudolf v. McDonald, 6 Nebraska, 163. [238] CHAP. XI.] AND FRAUDCTLENT ATTACHMENTS. 275 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 ;i and in Iowa, that a junior attacher could not intervene in a prior attachment suit, to show that it was prosecuted b}^ 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 try, 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 plain- tiff might recover, they would be permitted to defend in the name of the defendant? Afterwards the same court referred to this as 1 Harrison v. I'ender, Busbee, 78 ; 2 Whipple v. Cass, 8 Iowa, 12(). Bank of Fayette ville v. Spurling, 7 Jones, » Buckman v. Buckman, 4 New Hamp. 398. 319. [239] §2(0 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI. a verv common practice, and as in general the only mode in which a fraudulent attaclnnent could be defeated;^ and in a subsequent 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 distril)uted among the several attaching creditors ; and a judgment in attachment serves no other purpose than to ascertain the amount of the plaintiff's claim on the attached property, by establishing his demand against thp 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 preventfraud and injustice. 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 tlie 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 ' Webster i'. Harper, 7 New Hamp. came lefore it between conflicting attach- 594 ; Pike v. Pike, 4 Foster, 384. ing creditors, wliere the claim of one was ■^ Blaisdell v. Ladd, 14 New Hamp. resi.sted by tiie others, because it embraced, 129. See Harding v. Harding, 25 Ver- besides a debt actually due, an amount mont, 487, for the practice in such cases, intended to cover and secure a liability as regulated by statute in Vermont. which the plaintiff was under as an in- ^ Kimball v. Wellington, 20 New dorser for the accommodation of the de- Hamp. 439. fendant, decided tliat, in the absence * Walker v. Roberts, 4 Richardson, of fraud, such a combination of claims 561. did not make the attachment void, and 5 Walker v. Roberts, 4 Richardson, that the attachment should be sustained .561 ; Ralph v. Nolan, 1 Rice's Digest of as to the debt really due, but not as to 8. C. Reports, 77. The Supreme Court the rest. Ayres v. Hasted, 15 Conn, of Connecticut, however, in a case which 504. [240] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. 275 same position was sustained in California,^ Mississippi,^ and Indiana.^ Tlie Court of Appeals of Virginia have taken the same salutary- course, and held that a junior attaching creditor ma}^ come in and defend against a senior attachment, by 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.^ 1 Patrick v. Montader, 13 California, 434 ; Davis v. Eppinger, 18 Ibid. 378. - Henderson v. Tiiornton, 37 Missis- sippi, 448. 3 United States Express Co. v. Lucas, 36 Indiana, 361 ; Lytle v. Lytle, 37 Ibid. 281. * McCluny v. Jackson, 6 Grattan, 96. 5 Smitli V. Gettinger, 3 Georgia, 140. Tlie case arose upon a motion by tlie junior judgment creditor to set aside tlie senior judgment, for alleged want of con- sideration or cause of action. The whole facts are best shown in the opinion of the court, delivered by Ni.sbet, J. " Upon a rule against tlie slieriff for the distrii)ution of money raised by attachment, the plaintiff in error, holding an attachment lien, junior to that of the defendants, sought to set aside tlieir lien. The attachment claim of both parties has been reduced to judgment. For the pur- pose of vacating the judgment of tlie de- fendants, and thereby defeating their older lien, the plaintiff in error tendered to them in the court below the following issues : — "1. That G. & B. (the defendants in error) have no judgment against H. (the defendant in attacluiient), good and sufH- cient in law ; nor did G. & 15. have at the time of suing out their attachment any cause of action against said II. as alleged. "2. That said judgment in favor of said G. & B., had upon such attachment, is, and was, witiiout adequate considera- tion, and therefore void as to said S. (the plaintiff in error). " 3. That the attachment in favor of G. & B. was sued out on a note made by one M., and not by the defendant H., and that said judgment on said attachment was had and founded on said note made b}' said M., and that no other evidence besides said note was produced to the jury who found said verdict in favor of G. & B. ; and that therefore said judgment and attachment are of none effect as against said S. " The defendants in error demurred to these issues, and the court sustained the demurrer; to which decision the plaintiff in error excepts, and upon it assigns error. The questions made by the record appear to be tliese, to wit : ' is It competent for a plaintiff in attachment, ho/dinf/ a judgment and an attachment lien i^oitni/er than the judg- ment and attachment lien of another plaintiff in attachment, against the same deferdant, to set aside the older lien and judgment, upon the ground of want of consideration for that judgment, or upon the ground of fraud in the judgment ; and if it is, can it lie done hy mo- tion, and issue tendered at law ? ' " The general rule as to the effect of judgments is, that they are conclusive upon parties and privies. Parties are all such persons as were directly interested in the subject-matter, had a rigjit to make defence, to adduce testimony, to cross- examine witnesses, to control the pro- ceedings, and to appeal from the juilg- ment. Privies are all persons who are represented by the parties and claim un- der them, all who are in privity with the parties ; the term privity denoting nat- ural or successive relationship to tlie same rights of property. All persons not par- 16 [241] § 275 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. In New Yoilv, tlie following case is reported. A. issued an at- taeliuient, and caused it to be levied on property of B., owned b}' hiui 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 co- pai-tner, and levy on the attached property, thus gaining a prior right over A. This judgment was set aside by the court, as be- ing intended to defraud creditors. Thereupon D. issued an attachment on the partnership debt, and levied it on the property already 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 lev}' of D.'s attachment, he went on selling- goods to B. & Co., and required and obtained security on those sales. These facts, taken in connection with the design of the ties or privies are regarded as strangers. Strangers are not concluded by a judg- ment. Brown v. Chaney, 1 Georgia, 410. " Without going further into tlie gen- eral doctrines upon tiiis subject, we pro- ceed to say, that the plaintiff in error was not a party, nor a privy, to the judgment or attachment rendered in favor of G. and B. against H. He had no power, in liis own right, to make a defence against it, to adduce testimony, to examine witnesses, to control the proceedings, or to enter an apjieal. " The plaintiff in error being a stranger tlien to this judgment, it is scarcely neces- sary to adduce authorities to demonstrate Ills right to set it aside, if prejudicial to his interest, /'^r/muc?. Nor is it any the more questionable, that he may set it aside as being wholly wilhont consideration. But there are some authorities which relate more particularly to attachments, which have a direct relevancy to this case. [The court then review the cases on this sub- ject in Massachusetts and Maine, and proceed.] " These principles and these author- ities establish that this attachment may be vacated, and also the judgment which is founded on it, for fraud, — for a.ny thing that amounts to a fraud upon the rights of other creditors, whether the defendant be a party to the fraud or not. It was sought to be done in this case by an issue at law, before a jury. Can it be so done ■? £242] is the remaining inquiry. That it may be done by a proceeding in equity, by a creditor whose debt is not reduced to judgment, even, I presume there is no doubt. It may be conceded, for it has been so ruled, particularly in South Car- olina, that a creditor whose debt is not reduced to judgment, cannot, upon mo- tion, set aside a judgment in attachment, for irregularity. In this case the debt of the objecting creditor is in judgment : he also has a lien upon the fund in the hands of the court for distribution. JSothing is more common in our courts, upon the distribution of money, than upon tiie sug- gestion by one holding a junior lien that an older e.xecution has been paid, to send that fact to be tried by a jury at law. Why may not a suggestion that there is fraud in the judgment, be tried in the same way ? It is not enough to say, that the party has a remedy in equity ; for over questions of fraud, the jurisdiction, by express statute, and indeed by the general law, in courts of law and equity, is concurrent. We think it is at the op- tion of the party to move at law or go into equity. If he chooses to abide the rules (jf the law, the risk is his ; the court has no right to turn him away. In South Carolina, it has been determined that a judgment will be set aside at tlie instance of a creditor, upon an issue of fraud be- fore a court of law." CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 276 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 de- mand, 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 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 ; it was held, that his judgment was fraudulent as against, and was post- poned 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.^ 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 an- other attachment, and the defendant showed him the goods, and B. tliereupon attached them, knowing the existence of A.'s at- tachment ; and A. sued B., in trover, for the value of the goods ; it was held, that B.'s attaching the goods with the defendant's 1 Reed v. Ennis, 4 Abbott Pract. 39G. » Ward v. Howard, 12 Ohio State, '•2 Hale V. Chandler, 3 Michigan, 631. 158. [243] § 278 SIMULTANEOUS, SUCCESSIVE, CONFLICTING, [CHAP. XI 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 following 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 property, 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 re- sist 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 would 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 by A. there were two demands, one of which was 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, who 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 pioperty ; 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 v. Warren, 16 Mass. 420. ^ Adams v. Paige, 7 Pic-k. 542. 2 Kairfield v. Baldwin, 12 Pick. 388. [244] CHAP. XI.] AND FRAUDULENT ATTACHMENTS. § 279 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 ad- missible, 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 withdrawn from the attachment of bond 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 hoyid 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 between 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 difficult to furnish direct pi'oof 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 tliere 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 they are considered entirely inadmissible.^ § 279. In Massachusetts, tlie statute authorizing proceedings 1 Strong r. Wlieeler, o I'ick. 410. 3 Carter v. Gregory, 8 Pick. 105. 2 Lambert v. Craig, 12 Pick. 1^9. [245] § -270 SIMULTANEOUS, SUCCESSIVE," CONFLICTING, [CHAP. XI. of this (lescrii)ti(»n fornicvly provided that any subsequent attach- ing- creditor of the same jjroperty which was attached by a prior attacher, niight be admitted to defend the first suit, in like man- ner as the 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 which 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 makel^uch a defence; but the court considered that position untenable.^ 1 Lodge V. Lodge, 5 Mason, 407. 2 Carter v. Gregory, 8 IMck. 165. Tlie court said : " Tlie object of the statute, under which this defence was made, is avowedly to prevent fraud in the attach- ment of real or personal estate ; and the provisions of the statute are founded upon a supposed collusion between par- ties to the suit, to defraud creditors. To limit the defence which the subsequent attaching creditor is authorized to make, to such facts as the original defendant might himself aver, would be to impair in a great degree the use of the statute, as intended by tlie legislature. In cases of fraud and collusion, the defendant cannot avoid his contract by setting up fraud in defence against it. It is only when a contract is avoided by the stat- ute, as in the case of usury or gaming, or when the consideration is illegal, that this can be done. Mere want of consid- eration, arising from a fraudulent bar- gain between the promisor and promisee, not in violation of any positive law, but for the purpose of defrauding others, cannot, we think, be shown in evidence by a party to the fraud, in defence of an action ui)on his contract. And it is such contracts that the legislature intended should be inquired into by third persons, whose rights are affected. The words ' in like manner,' in the statute, do not limit the defence, but only regulate the nioile of making it. . . . It is said, then, that the plaintiff is entitled to judgment, because lie produces a note which the [-246] original defendant could not gainsay. If this be true, the statute is of no use ; for its object is to admit others to a defence, whicli grows out of a collusive agreement between the plaintiff and the original defendant. Suppose the note to be fab- ricated for the sole purpose of abstract- ing the property of the promisor from his creditors, shall not this be shown ? And yet the promi.sor himself could not show it. Or even suppose the note to be given for a valuable consideration, but that the sole purpose of the attachment was to defeat other creditors and to hold the property to the use of the debtor; shall not this be shown 1 And yet the promisor could not show it. " But it is said, that if the legislature so intended, their act is without author- ity, because the plaintiff, as between himself and the debtor, is entitled to a juilgment. The same may be said in all cases of default, or confessions of judg- ment ; and the argument will go further, for after judgment the plaintiff is entitled to execution and the fruits of it ; and yet, even at common law, a subsequently attaching creditor may defeat the first attachment, by showing that the judg- ment was collusively obtained. " The statute has only provided a mode of preventing collusive judgments, instead of leaving the injured pnrty to the relief before existing at common law ; which was defective, because its final success depended upon the ability of the wrong doer to respond in damages. The CHAP. XI.] AKD FRAUDULENT ATTACHMENTS. 281 § 280. The difficulties attending the practical operation of the Massachusetts statute, authorizing a subsequent attacher to make any defence to a previous attachment, wliich 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 attached propert}', might be allowed to dispute the validity and effect of the prior attachment, on the ground that the sum demanded 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. The court sustained this position, because — among other reasons — the note did not constitute an express promise until assented to by B.i But where a debt was due and payable when an attachment was taken out, and the at- tachment was contested by a subsequent attacher, on the ground that it was obtained by the order and direction of the defendant, and that the assent of the creditor was not given until after the subsequent attachment had been levied ; the court held, tliat un- der the statute in question the subsequent attacher had no right to make the question, because 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, promistd to secure his cred- 8tatute arrests tlie evil in tlie beginning, ' Baird v. Williams, 19 Pick. 381. In ami rescues the i)r<)i)erty itself from the Swift r. Oocker, 21 Pick. 241, the at- unlawful ajjpropriatioii intended. Surely tachnient was sued out and in part exe- tliis was a just and proper subject of cuted before the note was signed, and le}i;islation ; and the parties intereste. Reed, 28 California, 281. Sewall y. Mattoon, 9 Ibid. 535; Newman ^ Brown v. Richmond, 27 Vermont, V. Kane, 9 Nevada, 234. 583. 3 Rico V. Wilkins, 21 Maine, 558. ^ Brown v. Richmond, 27 Vermont, 683. [270] CHAP. Xn.] CUSTODY OF ATTACHED PKOPERTY. § 307 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 property 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. In connection with the matter of the obligation of an officer to have attached property forthcoming to satisfy the exe- cution, the question arose in New York, as to whom the execution should be directed, where the attaching officer had gone out of office between the time of the attachment and that of the issue of the execution. In the case, the execution was an ordinary /eri facias^ directed to the sheriff of the count}^, and delivered to the successor in office of him who made the attachment. . He demand- ed the attached property of his predecessor, who failed to deliver it, and the plaintiff in the attachment sued him for this failure. There was no statutory 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 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 1 Humphreys v. Cobb, 22 Maine, 380. » Eastman v. Eveleth, 4 Metcalf, 137. '^ Scott V. Crane, 1 Conn. 255 ; Dunlap * McKay v. Harrower, 27 Barbour, V. Hunting, 2 Denio, 643. 463. [271] § 309 CUSTODY OF ATTACHED PROPERTY. [CHAP. XII. 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 recovery, and that the court would thereupon order a stay of ex- ecution till the creditor's rights were determined, or might re- quire 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 ,2 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 generall}^ against officers for neglect or failure of duty; that is, the actual injury sustained by the plaintiff by reason of the neg- 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 primd 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- 1 Bailey v. Hall, 16 Maine, 408. * Bennett v. Brown, 31 Barbour, 158 ; 2 Briggs V. Taylor, 35 Vermont, 57. 20 New York, 99. 8 Twombly v. Hunnewell, 2 Maine, ^ Sedgwick on Damages, 539-543. 221. [272] I CHAP. XII.] CUSTODY OF ATTACHED PROPERTY. § 311 raent 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. ^ 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 might have attended the keeping, had it been kept safely .2 § 310. If an officer state in his return the value of property attached, we have seen that he is primd facie bound by it, and the burden is on him to show that the valuation was incorrect.^ When sued for not having the property forthcoming on execu- tion, 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- ciple is, that where an officer is required to perform a duty in- volving 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 de- fendant be unwilling 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 pay for the expense of keeping, and applies the remainder on the execution.^ Thus the defendant pays for the keeping. If the 1 Rich V. Bell, 16 Mass. 294. 4 French v. Stanley, 21 Maine, 512. 2 Lovejoy v. Hutcliins, 23 Maine, 272; 5 Allen v. Doyle, .33 Maine, 420. Tyler v. Ulnier, 12 Mass. 1G3; Sewall v. o Hanness v. Smith, 1 Zabriskie, 495 ; Mattoon, 9 Il)id. 535. Dean v. Bailey, 12 Vermont, 142; Mc- 3 Ante, § 206. Neil v. Bean, 32 Ibid. 429. 18 [273] § 311 CUSTODY OF ATTACHED PROPERTY. [CHAP. XII. defendant settles the debt with the phiintiff, so that no execution comes into the officer's hands, on which to make a sale, tlie officer may sustain an action against the defendant for the expense of the keeping ; ^ but he has no such lien on the property as will en- able 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 Avill not deprive the officer of the right of retaining the expense of keep- ing out of tlie 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, ahorse — sufficiently to pay for its keeping, he cannot make the plaintiff pay for such keeping.^ 1 Dean f. Bailey, 12 Vermont, 142; * Phelps v. Campbell, 1 Pick. 59; Sewall V. Mattoon, 9 Mass. 535. Tarbell v. Dickinson, 3 Cashing, 345. 2 Felker v. Emerson, 17 Vermont, 101. ^ Dean v. Bailey, 12 Vermont, 142. 3 Gleason v. Briggs, 28 Vermont, 135. Ante, § 203. [274] CHAP. Xin.] BAIL AND DELIVERY BONDS. § 313 h CHAPTER XIII. BAIL AND DELIVERY BONDS. § 312. 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.i 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. § 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.2 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.^ § 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.* § 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 1 Garrett w. Tinnen, 7 Howard (Mi.), •* Watson v. Kennedy, 8 Louisiana An- 465. See Ciiildress v. Fowler, 9 Arkan- nual, 280. eas, 159; Gillaspie v. Clark, 1 Tennes- * Biidersee i;. Aden, 62 Barbour, 175 ; see, 2. 12 Abbott Pract. n. s. 324. '' Lecesne v. Cottin, 10 Martin, 174. [275] § 316 a BAIL AND DELIVERY BONDS. [CHAP. XIIL 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 plaintiff 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 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.^ § 814 a. If the terms 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.^ § 815. 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 of them could not appear and give bail to discharge his separate effects, unless bail and appearance were entered for both.* § 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.^ § 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.^ 1 Huff V. Hutchinson, 14 Howard Sup. ^ Ward v. Whitney, 3 Sandford, Sup. Ct. 586. Ct. 399 ; 4 Selden, 442. 2 Cook V. Boyd, 16 B. Monroe, 556. ^ Dudley v. Goodrich, 16 Howard 3 Curiae v. Packard, 29 California, Pract. 189 ; Hartford Quarry Co. v. Pen- 194. dleton, 4 Abbott Pract. 460. * Magee v. Callan, 4 Cranch, C. C. 251. t [276] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 318 § 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 summoned the garnishee again ; the second garnishment was sustained.^ § 317. In Pennsylvania, Ohio, Kentucky, Illinois, 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 against 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 many attachment systems this bond may be given 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 1 Stewart v. Dobbs, 39 Georgia, 82. 3 Fife v. Clarke, 3 McCord, 347 ; Key- 2 Fitcli V. Ross, 4 Sergeant & Ravvle, nolds v. Jordan, 19 Georgia, 436. See 557 ; Albany City Ins. Co. v. Whitney, McMillan v. Dana, 18 California, 339. 70 Penn. State, 248 ; Parker v. Farr, 2 * Rathbone v. Ship London, 6 Louisi- Browne, 331; Myers v. Smith, 29 Ohio ana Annual, 439; Kendall v. Brown, 7 State, 120; Harper y. Bell, 2 Bibb, 221 ; Ibid. GG8 ; Love v. Voorhies, 13 Ibid. People V. Cameron, 7 Illinois (2 Oilman), 549. 468 ; Piiilips v. Hines, 33 Mississippi, & Qark v. Bryan, 16 Maryland, 171. 163 ; Morrison v. Alphin, 23 Arkansas, 136 ; Shirley v. Byrnes, 34 Texas, 625. [277] 5 319 BAIL AND DELIVERY BONDS. [CHAP. XITT. execution of the bond released any technical objections to the pre- liminary proceedings;^ while by the Supreme Court of the United States, and those of Missouri and Wisconsin, it Avas held, that thereafter the defendant could not take any exception to the attachment, or to the regularity of the proceedings under it.^ 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 givii^bond, might contest the truth of the allegation on which the arfachment 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 obliga- tion of the bond.* Subsequently the court further decided that the obligors in a bond of this description, to which the attachment defendaiit was 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 from interposing pleas in abatement founded on irregularities in the proceedings.^ § 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, &c. The action was against the surety in the bond, and the dec- laration set forth the affidavit on which the attachment issued, 1 Wharton v. Conger, 9 Sinedes & Marshall, 510. 2 Barry v. I'oyles, 1 Peters, 311 ; Huff V. Hutchinson, 14 Howard Sup. Ct. 586; Payne v. Snell, 3 Missouri, 409; Dierolf y. Winterfielcl, 24 Wisconsin, 143. 3 Schlater v. Broaddus, 3 Martin, N. 8. 321; Oliver v. Gwin, 17 Louisiana, 28. [278] * Paihles v. Boux, 14 Louisiana, 82 ; Myers v. Perry, 1 Louisiana Annual, 372 ; Kendall v. Brown, 7 Ibid. 668. ^ Quine v. Mayes, 2 Robinson (La.), 510 ; Bauer v. Antoine, 22 Louisiana An- nual, 145; Edwards v. Pratlier, Ibid. 334. <> (Childress v. Fowler, 9 Arkansas, 159 ; Delano v. Kennedy, 5 Ibid. 467. CHAP. XIII.] BAIL AND DELIVERY BONDS. § 320 the issuing 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, the 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 the attachment was issued.^ Much less can the attachment defendant, in an action on such bond, object to the regularity of the proceedings in the attachment suit.^ 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. But 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 1 Cadwell v. Colgate, 7 Barbour, 253. » Dunn v. Crocker, 22 Indiana, 324. See Egan v. Lumsden, 2 Disney, 1G8 ; < McMillan v. Dana, 18 California, Bildersee v. Aden, tj2 Barbour, 175. 339. ■^ Cruyt V. rhillips, lU Howard Tract. 120. [279] § 322 BAIL AND DELIVERY BONDS. [CHAP. XIII.I attachment might be issued according to the statute ? This ques- tion was passed upon by the New York Coui-t for the Correction of Errors, in the negative. Chancellor Walwokth, 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 any thing 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 b}'" 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- 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 ,2 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 attached, and released on a bond being given; and afterwards a third party intervened and claimed the cotton to be his ; but the court re- fused to hear evidence or entertain the intervention. The Su- preme Court sustained this decision, holding the jDroperty to be no longer under the control of the court ; that the bond was a substitute for the property ; and that the intervenor 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 discharged. Third parties, claiming the attached property, can have no recourse upon 1 Kanouse i'. Dormedy, 3 Denio, 667. 277 ; Benton v. Roberts, 2 Louisiana An- ^ Ante, § 317. nual, 243; McRae v. Austin, 9 Ibid. 360 ; 2 Dorr V. Kershaw, 18 Louisiana, 57 ; Monroe v. Cutter, 9 Dana, 93. See Mc- Beal V. Alexander, 1 Robinson (La.), Milian v. Dana, 18 California, 339. [280] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 323 the bond, there being no privity between them and the obligors.^ And the judgment obtained against the defendant, ivhere he is not a party 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 neces- sary that the judgment against the defendant in the attachment suit should express that it is with privilege on the property at- tached. The obligors undertake to pay any judgment which may be recovered against the defendant ; and as the execution of the bond authorizes a personal judgment against him, it is not requisite that the judgment should make reference to the attachment, 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 judg- ment ; 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 1 Dorr V. Kershaw, 18 Louisiana, 57 ; ^ Beal v. Alexander, 1 Robinson (La.), Beal V. Alexander, 7 Kobinson (La.), 349. 277; Hazelrigg v. Donaldson, 2 Metcalfe 2 Clark v. Bryan, 16 Maryland, 171. (Ky-). 445. See Bacon v. Daniels, lltt 8 Love V. Voorliies, 13 Louisiana An- Mass. 474. In Kentucky it was also nual, 549. held, that after the giving of such a bond * Bond V. Greenwold, 4 Heiskell, 453. no inquiry as to the property attached * Goebel v. Stevenson, 35 Michigan, was pertinent, and tlierefore a claim of 172. the property by a third party could not 6 Dorr V. Kershaw, 18 Louisiana, 57. be investigated. Taylor v. Taylor, 3 1 Coleman v. Bean, .32 Howard Pract. Bush, 118. 370; 14 Abbott Pract. 38 ; 1 Abbott Ct. '•• McMillan v. Dana, 18 CaUfornia, of Appeals, 394. 339 ; Bacon v. Daniels, IIG Mass. 474. [281] § 323 a BAIL AND DELIVERY BONDS. [CHAP. XIII. that no property was attached ; ^ or that the grounds for obtain- ing tlie attachment were insufficient ;2 or lliat the sureties were induced to execute it by fraud of their principal, unless the at- tachment 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 them as a defence, that, after judgment and execution were ob- tained against the defendant, they pointed out to the plaintiff property of the defendant, out of which 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 prayed and allowed from the judgment in tlie attachment suit, it was held to be no defence, and that it should have been shown that the appeal was pending/ and unde- termined." 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 Constitu- tion 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 defend- ant; 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 1 Frost V. White, 14 Louisiana Annual, * Murray v. Shearer, 7 Gushing, 140. 333. 2 Hazelrigg v. Donaldson, 2 Metcalfe 5 Morange v. Edwards, 1 E. D. Smith, (Ky.), 445; Inman v. Strattan, 4 Bush, 414. 445 ; Bildersee v. Aden, 62 Barbour, <> Hill v. Merle, 10 Louisiana, 108. 175. ' Toteet v. Boyd, 10 Missouri, 160. 3 Coleman v. Bean, 14 Abbott Pract. ^ Irvin v. Howard, 37 Georgia, 18. 38 ; 1 Abbott Ct. of Appeals, 394. [282] CHAP. Xril.] BAIL AND DELIVERY BONDS. §323 6 the same, the surety is discharged from his obligation on the bond.i § 823 h. The sureties in such a bond are released by the discharge of the principal in bankruptcy before judgment rendered against him.^ ' Hayes v. Josephi, 26 California, 635. The court said : " Tlie question is, wiietlier the surety was disciiarged by the tender of tiie amount due on the judgment, and the refusal of M. (tiie at- tachment plaintiff) to accept it, under tiie circumstances stated in tlie answer. We think he was. No autliority has been cited on eitlier side, and we have not been able to find one in whicJi the pre- cise point involved in this case was de- cided or discussed. There can be no doubt that the contract is essentially one of surety. The defendant undertook, without any valuable consideration mov- ing to himself, to answer upon certain contingencies for the debt of another. True, he undertook to pay the debt upon the happening of the contingency, and in this sense it was his own contract, his own debt, and it became his duty to pay it ; but so it is in everj' other case of suretyship. The rigiits of the parties must be determined upon the general principles of law applicable to contracts of sureties. . . . The law requires the creditor to act in the utmost good faith toward the surety, and will not permit him to do any thing that will unneces- sarily tend to prejudice his interests. The creditor will certainly not be permitted to place obstacles in the way of tlie surety, which tend to hinder him in the pursuit of such remedies as are guar- anteed to him by the law. The surety is entitled to pay the debt, and thereby at once acquire the right to proceed against the jirincipal. ... If it is the legal right of the surety to pay the debt, and at once proceed against the principal debtor, it necessarily follows, that he is f-ntitleil 'to have the money accejited by the creditor, in order tliat he may pro- ceed. It is the duty of the creditor to receive it, and a gross violation of duty and good faith on his part to refuse, thereby interposing an insurmountable obstacle in the vvay of the pursuit by the surety of his most prompt and efficient remedy. . . . Upon payment to the cred- itor, the surety is entitled immediately to enforce payment from the principal, and the law imposes upon the creditor the obligation not to interpose any obsta- cle to the immediate exercise of that right. But without payment the surety cannot recover against the principal. If the creditor refuses to receive the money when tendered, he as effectually pre- vents the surety from promptly pursu- ing liis most efficient remedy, as he would by entering into a valid contract with the debtor to extend the time of payment. . . . The obstacle in either case is insurmountable, and the obstruc- tion is placed in the way of the remedy by the act of the creditor, and against tlie will of the surety. ... It is true that a tender by the ]>rincipal debtor does not discharge the debt, and he is bound to keep his tender good, and be ready to pay over the money which belongs to the creditor whenever the creditor calls for it. But, then, he loses nothing, and is only put to the slight inconvenience of keeping the money. But there are substantial reasons why a tender should operate as a discharge of a mortgage, or surety, which do not apjily to the debtor personally. To continue a mortgage on foot after a tender, might tie up the mort- gaged projierty and greatly embarrass the mortgagor in its full enjoyment, by preventing a sale or mortgage for other purposes, and thus great daruage might result to him. So, also, in the case of a surety, a refusal to take the money when tendered might obstruct the surety in pursuing his remedy against the princi- pal, ami in addition to the small inconven- ience of preserving the money for the creditor, result in its entire loss to the surety." ■■' Payne v. Able, 7 Busli, o44 ; Car- penter y. Turrell, 100 Mass. 450; Hamil- ton V. Bryant, 114 Ibid. 543. § 326 BAIL AND DELIVERY BONDS. [CHAP. XIII. § 324. In Arkansas it is held, that the sureties may be sued without issuing execution against the principal. It is suffi- cient 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 de- fendants, where the defendants remained the same. But where the obligation 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 judg- ment ; 2 but if, by the plaintiff's act, without the assent of the sureties, a change is made in the defendants against whom judg- ment is obtained, either by discontinuing as to some, and the bringing in of others,^ or b}^ discontinuing as to some and taking judgment against the rest,* the obligation of the sureties is dis- charged. § 325 a. On the principle governing in the cases cited in the preceding section, a change in the plaintiffs, without the con- sent of the sureties in the bond, will discharge the liability of the latter. Thus, where a bond was given in an action in favor of A. as surviving partner, and B. as administrator of the de- ceased 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 tlie defendant ; it was held, that the change in the plain- tiffs discharged the obligation of the bond.^ § 326. In Louisiana, a case arose, not strictly of the nature of those we are now considering, but bearing such resemblance to 1 Lincoln v. Beebe, 11 Arkansas, 697 ; * Andre v. Fitzhugh, 18 Michigan, 93; Chrisman v. Rogers, 80 Ibid. 351. Harris v. Taylor, 3 Sneed, 636. ^ Leonard v. Speidel, 104 JNlass. 356. * Quillen v. Arnold, 12 Nevada, 234, 3 Tucker v. White, 5 Allen, 322; Rich- ards V. Storer, 114 Mass. 101. [284] CHAP. Xin.] BAIL AND DELIVERY BONDS. § 327 them as to be properly noticeable liere. 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 ad- justment of their respective claims and accounts, upon a due ap- praisement and sale of the interest and share of the defendant ; and the court ordered the boat to be delivered to them, on their executing bond, with security, " to abide the judgment of the court in the premises." Judgment was rendered against the de- fendant, 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 ac- count 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 any thing 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. Delivery Bonds. This description of instrument is variously styled Delivery, Forthcoming, or Replevy Bond.^ It is usually conditioned for the delivery of the property to the officer, either to satisfy the execution which the plaintiff may ob- tain in the cause, or when and where the court may direct. Sometimes the alternative is embraced, of the delivery of the property or the satisfaction of the judgment recovered in the ac- 1 Nancarrow v. Young, 6 Martin, 662. the nature of the stipulations entered into 2 In McRae v. McLean, 3 Porter, 138, in the bond, than upon the particular Hitchcock, J., said in delivering the circumstances which may attend the case, opinion of the court : " The term repJevy, All our injunction and writ of error bonds in its general sense, includes every return are replevy bonds ; yet there is no lien of property levied on, for whatever cause, retained on the 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 the ques- made." / tion of lien or no lien depends more upon [285] §328 BAIL AND DELIVERY BONDS. [CHAP. XIII. ^V-— ' t tion. Such a bond is no part of the record in a cause, and can- not be looked to, to exphiin 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.^ § 327 b. 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. T'u^^^lj^ipi^^ TI'VrT'fi^ ''^ ' y^'^f^"K ^^ givftUj-^i the nature of a condition to a penal j^iu^wiAmmgfi no bond pre- ceded the condition, it was held to be sufficieB*^n the following grounds : " It states what act, if performed, shall have the effect of rendering the supposed. bond void. It implies an agreement on the part of the obligors for the performance of that act. It in effect stipulates that the property attached shall be forthcom- ing when ordered by the court to be returned to its custody. It shows that a duty had devolved on the persons executing the in- strument, 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. 4 1 Kirksey v. Bates, 1 Alabama, 303. Waters v. Riley, 2 Harris & Gill, 305 ; 2 Shcppard V. Collins, 12 Iowa, 570. Johnson v. Weatherwax, 9 Kansas, 75. See Morse v. Hodsden, 5 Mass. 314; ^ Wood wartl y. Adams, 9 Iowa, 474. Barnes v. Webster, 16 Missouri, 258 ; * Yocum v. Barnes, 8 B. Monroe, 496. [286] CHAP. XIII.] BAIL AND DELIVERY BONDS. § 331 § 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," &c. ; 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.^ § 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 atcach- 1 Purcell V. Steele, 12 Illinois, 93; Missouri, 411; Jones v. Jones, 38 Ibid. Sheppard y. Collins, 12 Iowa, 570. 429; People v. Cameron, 7 Illinois (2 2 Gray v. Perkins, 12 Smedes & Mar- Oilman), 468; Gass i'. Williams, 4(i Indi- sliall, 022; McUae v. McLean, 3 Porter, ana, 2-33 ; Hoyd y. Buckins^liam, 10 llum- 138 ; Hives v. Wilborne, 6 Alabama, 45 ; phreys, 434. Sed contra, Schuyler v. Syl- Kirk y. Morris, 40 Ibid. 225 ; Woolfolk y. vester, 4 Dutclier, 487; Austin v. Bur- Ligram, 53 Ibid. 11 ; Evans v. King, 7 gett, 10 Iowa, 302. [287] §333 a BAIL AND DELIVERY BONDS. [CHAP. XIII. ment suit, by a levy and sale, to cause a forfeiture of the condition of the bond.i And this, too, though the party giving the bond take the property into another State ; for he is considered to have a qualified property in the thing, 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 a])pearance, 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- knoAvledgment 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 1 Rives V. Wilborne, 6 Alabama, 45 ; Kane v. Pilcher, 7 B. Monroe, 651. In Jones V. Peasley, 3 G. Greene, 53, it was held by the Supreme Court of Iowa, that a bond conditioned " that the attached property, or its appraised value, shall be forthcoming to answer the judgment of the court," discharges the property from the lien of the attachment, and leaves it subject to a subsequent attachment for the defendant's debts, and that the obli- gors cannot defend against tlie bond, be- cause the property was subsequently attached by other creditors. [288] 2 Gordon v. Johnston, 4 Louisiana, 304. 3 Wilkinson v. Patterson, 6 Howard (Mi.), 193; Richard i;. Mooney, 39 Mis- sissippi, 3-57 ; Blyler v. Kline, 64 Penn. State, 130. I Hoshaw V. Gullett, 53 Missouri, 208. 5 Kirk V. Morris, 40 Alabama, 225. 6 Avet V. Albo, 21 Louisiana Annual, 349. ■J Cummins v. Gray, 5 Stewart & Por- ter, 397; Sewall v. Franklin, 2 Porter, 493. CHAP. Xni.] BAIL AND DELIVERY BONDS. § 335 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 ; find 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 possession of the property when replevied ; that the defendant has the right to demand of the stranger the possession of it ; that on such demand 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 was 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.^ § 334. 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 within 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.^ § 335. The surety in any such bond may exonerate himself therefrom, by delivering the property to the officer, at any time before judgment is rendered against him on the bond.^ This de- 1 Kirk V. Morris, 40 Alabama, 225. 5 Waynant v. Dodson, 12 Iowa, 22. 2 Morris v. Hall, 41 Alabama, 510. 6 Reagan v. Kitchen, 8 Martin, 418 ; 3 Mitcliell ?;. Merrill, 2 Blackford, 87. Hansford y. Perrin, 6 B. Monroe, 595; * Brotherton v. Thomson, 11 Missouri, Kirk v. Morris, 40 Alabama, 225. 94. 19 [289] § 336 BAIL AND DELIVERY BONDS. [CHAP. XIII. lively 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 prin- cipal, on the day the slave was to be delivered, met the officer cro%sing 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 de- fendant 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 to the officer 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 gestcefi 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- ing 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, Tinder 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 the bond to be with sureties, and one is given in which the obligors are named as principals, and 1 Pogue V. Joyner, 7 Arkansas, 462. Mass. 591 ; Wood v. Washburn, 2 Pick. 2 Driggs V. Harrington, 2 Montana, 30. 24. 3 Yocum V. Barnes, 8 B. Monroe, 496. ^ Sessions v. Jones, 6 Howard (Mi.), * Clements v. Cassilly, 4 Louisiana 123. See Crawford v. Foster, 6 Georgia, Annual, 380. See Bean v. Parker, 17 202. [290] CHAP. XIII.] BAIL AND DELIVERY BONDS. 339 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.^ § 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 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. 3 § 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 relation to such a bond, that the surety ought not to be proceeded against alone, where the principal was within reach of the process of the court.^ And in Louisiana, the surety cannot be made liable, un- til restoration of the property or payment of the bond has been demanded of the principal.^ But it is not necessary that a de- mand upon the security, 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 large as the law required ; ^ nor can they question the validity of the officer's levy of the attachment ; ^ nor object to the validity of the affidavit on ' Scanlan v. O'Brien, 21 Minnesota, <* Goodman v. Allen, 6 Louisiana Au- 434. nual, 371. 2 Burch V. Watts, 37 Texas, 135. ' Weed v. Dills, 34 Missouri, 483. * Canfield v. M'Lauglilin, 10 Martin, ^ Jones v. M. and A. Railroad Co., 5 48. Howard (Mi.), 407. * Hansford v. Perrin, 6 B. Monroe, ^ Scanlan v. O'Brien, 21 Minnesota, 605. 434. ^ Page V. Long, 4 B. Monroe, 121. [291] §339 BAIL AND DELIVERY BONDS. [CHAP. XIII. which the writ issued ; ^ nor complain of mere errors in the action against their principal .^ Nor is it comj)etent for them to aver that the property attached was not the defendant's, but belonged to a third person, who took it into his possession, whereby 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 their 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- 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 de- livery 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- 1 Goebel v. Stevenson, 35 Michigan, 172. 2 Atkinson v. Foxworth, 53 Missis- sippi, 733. 3 Sartin v. Wier, 3 Stewart & Porter, 421 ; Gray v. MacLean, 17 Illinois, 404 ; Dorr V. Clark, 7 Michigan, 810 ; Easton v. Goodwin, 22 Minnesota , 426. In Iowa, where such a defence is allowed by stat- ute, it was held not sufficient to aver that the property was not the defendant's ; but the plea must show whose it was. Blatchley v. Adair, 5 Iowa, 545. In Ken- tucky, in an action on a bond, tlie under- taking of which was, " tliat the defendant S. shall perform the judgment of the court in this action, or that the undersigned H, will liave the seventy-five hogs attached in this action, or their value, S412, forth- coming and subject to the order of the [292] court for the satisfaction of such judg- ment ; " it was held, that the owner of property, attached in an action against a third person, who gives such a bond in order to retain his possession, is not thereby precluded from asserting his claim to tiie property, or disputing the validity of the attachment. Schwein v. Sims, 2 Metcalfe (Ky.), 209. See Halbert v. McCulloch, 3 Ibid. 456. But if he fails to assert his claim to the property until, by judgment, it is subjected to the attachment, he shall then neither be heard in a defence to the bond, nor on a suit for the recovery of the money or the property. Miller v. Desha, 3 Bush, 212. * Crisman v. Matthews, 2 Illinois (1 Scammon), 148; Price v. Kennedy, 16 Louisiana Annual, 78. 5 Morgan v. Furst, 4 Martin, n. s. 116. CHAP. XIII.] BAIL AND DELIVERY BONDS. 341 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 execut- ing a forthcoming bond therefor, if such party claim to be the owner of the 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 property to himself, and to make that justification in the suit to which he has voluntarily made himself a party : 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 liti- gate the action again upon other grounds.* § 340 h. A delivery bond is a substitute for the property at- tached, 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, by his own conduct, 1 Guay V. Andrews, 8 Louisiana An- * "Wright v. Oakey, 16 Louisiana An- nual, 141. nual, 125. 2 Koberts v. Dunn, 71 Illinois, 46. ^ Wright v. "White, 14 Louisiana An- 3 Braley v. Clark, 22 Alabama, 361; nual, 583; White v. Hawkins, 16 Ibid. Cooper ;;. Peck, Ibid. 406; Morgan v. 25. Furst, 4 Martin, n. s. 116. ^ Falls v. Weissinger, 11 Alabama, 801 ; Post, § 385. [293] § 341 h BAIL AND DELIVERY BONDS. [CHAP. XUI. 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 which the party- is not legally entitled. A bond of the former description is usually given by or on behalf of the defendant, and does the 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 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 bankrupt.^ 1 Dear v. Brannon, 4 Bush, 471. Sed n. s. 1G3 ; Gass v. Williams, 46 Indiana, contra, Atkinson v. Foxworth, 53 Missis- 253. sippi, 741. « Payne v. Able, 7 Bush, 344. 2 Jaeger v. Strolting, 80 Indiana, 341. 5 Kaiser v. Richardson, 5 Daly, 301. 3 Bildersee i". Aden, 10 Abbott Pract. [294] CHAP. Xin.] BAIL AND DELIVEEY BONDS. § 343 And so, where the death of the defendant has the effect of dis- solving the attachment.^ § 341 e. 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 afterr the slaves had been emancipated by the thirteenth amendment to the Constitution of the United States.^ § 342. The measure of recovery on a delivery bond is the value of the property secured by it, not exceeding the amount of the plaintiff's recovery 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 attachment 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 property.^ Where the law provided that judgment should not be entered against the surety for a sum greater than the assessed value of the property, it was decided, that if there was no assessment of its value, there could be no judgment against the surety.^ If the property was subject 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 thereby be discharged ; but only nominal damages can be re- covered against him, unless the property was greater than the amount of the lien ; in which ease the excess would be the meas- ure 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 Upham V. Dodge, 11 Rhode Island, Moon v. Story, 2 B. Monroe, 354; Weed 621. V. Dills, 34 Missouri, 483. '^ Young V. Pickens, 45 Mississippi, * Richard v. Mooney, 39 Mississippi, 553. See Green v. Lanier, 5 Heiskell, 357 ; Phillips v. Harvey, 50 Ibid. 489. 602. 5 Dehler v. Held, 50 Illinois, 491. ® Collins V. Mitchell, 3 Florida, 4 ; '^ Labeaume v. Sweeney, 17 Missouri, 153. [295] § 344 BAILMENT OF ATTACHED PEOPERTY. [CHAP. XIY. CHAPTER XIV. BAILMENT OF ATTACHED PROPERTY. § 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 re- ceipt, and promising to redeliver the property to the officer on demand. This practice has not its authority in any 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. 364. tion to this practice, said : " The taking 2 Davis V. Miller, 1 Vermont, 9; of a receipt for property attached is a Moulton V. Chadborne, 31 Maine, 152. common mode of perfecting an attach- In Batchelder v. Frank, 49 Vermont, 90, ment. It saves expense to all the parties, the court said : " The law does not re- relieves the officer of the care and cus- quire the officer to take a receipt for tody of the property, and gives the cred- property attached. . . . Whether the itor all he seeks for by his attachment, officer will or will not take a receipt, is viz., security for his debt. It is at once not the exercise of official function, but so convenient and so safe a mode of se- is determined by him on personal reasons, curing all the purposes of an attachment in view of all that appertains to the sub- that it has been adopted universally in ject ; and those reasons are not amenable practice ; and though not authorized by to judicial inquiry as between him and statute, is recognized in law as an official the party wliose receipt he declines to act having definite and well-settled rights, take." duties, and obligations." Austin v. Bur- ^ Runlett V. Bell, 5 New Hamp. 433. lingtou, 34 Vermont, 506. The Supreme Court of Vermont, in rela- [296] CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 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 plaintiffs 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 theni, 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 Runiett v. Bell, 5 New Hamp. 433. most natural form of such 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 this practice : " The practice naturally be introduced, as their utility of delivering property attached to a came to be seen, until every thing sup- bailee for safe keeping, must have been posed to be otherwise likely to be an coeval with the practice of making such occasion of dispute, would be mentioned, attachments. It is, in its nature, a sim- . . . Tliere is ordinarily, however, noth- ple deposit, a delivery of the property to ing in such a receipt which changes the be kept by the depositary, witliout com- duties or obligations of the parties, from pensation, until called for by the attacli- 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 attaclied 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. to tlie receiptor for safe keeping, and to ' Allen v. Doyle, 33 Maine, 420. be returned, on request, would be the [297] § 346 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. pay the debt and costs in the ease. In such case the receipt is none the less a positive contract to redeliver the goods ; the al- ternative 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 oificer to take an equal quantity of goods of the same kind and quality, or discharge himself by paying the officer the value of the goods ; but he must return the identical articles de- livered 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 of- ficer ; 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-delivery 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 implica- tion, be construed as acknowledging the receipt of property, to 1 Sibley v. Story, 8 Vermont, 15. 3 Page v. Thrall, 11 Vermont, 230. 2 Anthony v. Comstock, 1 Rhode Is- * Waterhouse v. Bird, 37 Maine, 326; land, 454. Waterman v. Treat, 49 Ibid. 309. [298] CHAP. XIV.] BAILINIENT OF ATTACHED PROPERTY. § 349 be redelivered 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, $-100 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 ac- knowledgment 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 plain- tiffs benefit, this is an equitable assignment of it, which will pre- clude the officer from interfering with the avails of the receipt when judgment has been obtained on it, though obtained in his name.^ § 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, du- ties, and liabilities of all the parties. These we will now proceed to consider. § 349. That which seems to lie nearest the foundation of this subject is the relation which is established by the contract of 1 Bruce v. Pettengill, 12 New Hamp. Jewett v. Dockray, 34 Ibid. 45 ; Phillips 341. V. Bridge, 11 Mass. 242. 2 Clark V. Clougli, 3 Maine, 357 ; 3 Lawrence v. Rice, 12 Metcalf, 527. [299] § 351 BAILMENT OF ATTACHED PKOPERTY. [CHAP. XIV.^ bailment between the officer and the bailee. This has been the subject of frequent discussion, and the conclusion seems to have been generally 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 of- ficer, 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 property, 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 Massachusetts, it was once held to be very clear, that after an officer had delivered attached property to a re- ceiptor, and taken his receipt therefor, and his promise to rede- liver it on demand, it could no longer be considered as in the constructive possession of the officer.^ But this view is wholly inconsistent with other decisions in the same State,^ and not less with the doctrine maintained there in numerous cases, that the 1 Ludden i-. Leavitt, 9 Mass. 104 ; v. Hinman, 8 Wendell, 667 ; Gilbert v. Warren v. Leland, Ibid. 265 ; Bond v. Crandall, 34 Vermont, 188. Padelford, 13 Ibid. 394 ; Commonwealth '^ Post, § 367. 1-. Morse, 14 Ibid. 217 ; Brownell v. Man- ' Ante, § 290. chaster, 1 Pick. 232 ; Small v. Hutchins, * Ante, § 290. 19 Maine, 255; Eastman v. Avery, 23 5 Knap u. Sprague, 9 Mass. 258. Ibid. 248 ; Barker v. Miller, 6 Johnston, 6 Bond v. Padelford, 13 Mass. 394 ; 195 ; Brown v. Cook, 9 Ibid. 361 ; Dillen- Baker v. Fuller, 21 Pick. 318; Ludden v. back V. Jerome, 7 Cowen, 294 ; Mitchell Leavitt, 9 Mass. 104. [300] CHAP. XIV.] BAILMENT OF ATTACHED PROPEETY. § 353 special property of the officer in the goods continues after the bailment, 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, or devest the officer of his custody of, or 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 purchaser of it without notice acquires no rights in it.2 § 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 ' Pierson v. Hovey, 1 D. Chipman, 51 ; Page, 54 Ibid. 190 ; Tomlinson v. Collins, Enos V. Brown, Ibid. 280; Beacli v. Ab- 20 Conn. 8G4. bott, 4 Vermont, 605 ; Rood v. Scott, 6 ^ W'oodraan v. Trafton, 7 Maine, 178 ; Ibid. 263 ; Sibley v. Story, 8 Ibid. 15 ; Carr v. Farley, 12 Ibid. 328. Kelly V. Dexter, 15 Ibid. 310 ; Whitney •* Pierson v. Hovey, 1 D. Chipman, 51 ; V. Farwell, 10 New Hamp. 9 ; Howe v. Enos v. Brown, Ibid. 280 ; Beach v. Ab- [301] § 35G BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. of his deputy, and the receipt is taken by the deputy in his own '• name, as where the contract is in the name of the principah^ The Supreme Court of Maine expressed serious doubts whether the officer could retake the property without the consent of the debtor or receiptor ; ^ but, upon both principle and authority, it is difficult to perceive why it may not be done. § 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 de- fendant, or to the owner, may demand it from the bailee for that purpose.^ § 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 bott, 4 Vermont, 605 ; Rood v. Scott, 5 Baker v. Warren, 6 Gray, 527 ; Colwell v. Ibid. 263; Sibley v. Story, 8 Ibid. 15; Richards, 9 Ibid. 374. And tlie same Kelly V. Dexter, 15 Ibid. 310; Briggs v. view is held in Maine. Waterhouse v. Mason, 31 Ibid. 433; Odiorne v. Colley, Bird, 37 Maine, 826; Stanley u. Drink- 2 New Hamp. 66 ; Whitney v. Farwell, water, 43 Ibid. 468. 10 Ibid. 9 ; Bond v. Padeltbrd, 13 Mass. ' Baker v. Fuller, 21 Pick. 318; Davis 394. But in Massachusetts, it was held v. ]\Iiller, 1 Vermont, 9. in a late case, that a delivery of the at- - Weston v. Dorr, 25 Maine, 176. tached goods by the receiptor to the de- ^ Whittier v. Smith, 11 Mass. 211 ; fendant, legally operates as a discharge of Webster v. Harper, 7 New Hamp. 594. tlie attachment, and a termination of the * Ante, § 269. attaching oflEicer's special property in them. [302] CHAP. XIV.] BAILMENT OF ATTACHED PKOPEETT. § 357 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 oflficer'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 objec- tion to holding them, his liability will be the same under the sec- ond 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 what are 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- 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." ^ Therefore, in all such cases, where the property remains in the 1 Watson V. Todd, 6 Mass. 271 ; Vin- CoUey, 2 New Hamp. G6 ; WJiitney v. ton V. Bradford, 13 Ibid. 114; Thompson Farwell, 10 Ibid. 9; Tomlinson v. Collins, V. Marsh, 14 Ibid. 2GU ; Odiorne v. CoUey, 20 Conn. 364. 2 New Hamp. 66; Sinclair v. Tarbox, 3 Whitney?;. Farwell, 10 New Hamp. 9. Ibid. 5. * Bridge v. Wyman, 14 Mass. 100. •2 Knap V. Sprague, 9 Mass. 258 ; Wliit- » Bridge v. Wyman, 14 Mass. 190 ; tier V. Smith, 11 Ibid. 211 ; Odiorne v. Phillips v. Bridge, 11 Ibid. 242. [303] §360 BAILMENT OF ATTACHED PROPEKTY. [CHAP. XIV. debtor's hands, whether because never removed, or because re- turned after a removal, though, as we have seen, the officer may, at any time durmg the existence of the attachment, retake it from the defendant, if the matter be between him, the bailee, and the defendant only, yet the defendant may sell the property,^ or it may be attached by other creditors.^ And it is held in Massachusetts, that a delivery of the attached goods by the re- ceiptor to the defendant 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 in 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 con- venience, 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 1 Denny v. Willard, 11 Pick. 519; Eobinson v. Mansfield, 13 Ibid. 139. 2 Bridge v. Wyman, 14 Mass. 190 ; Dunklee v. Fales, 5 New Hamp. 527 ; Rob- inson V. Mansfield, 13 Pick. 139. 3 Baker v. Warren, G Gray, 527. * Train v. Wellington, 12 Mass. 495; [304] Baldwin v. Jackson, Ibid. 131 ; Young v. Walker, 12 New Hamp. 502. 5 Whitney v. Farwell, 10 New Hamp. 9 ; Bicknell v. Hill, 33 Maine, 297. « Young V. Walker, 12 New Hamp. 502. 7 Sanderson v. Edwards, 16 Pick. 144. CHAP. XIY.] BAILMENT OF ATTACHED PROPERTY. § 362 come into the possession of an adverse claimant,^ the lien of the first attachment is lost. § 361. An important question arises out of this practice of bail- ment, as to the liability 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 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, the 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.^ 1 Carrington v. Smith, 8 Pick. 419; * Donliam v. Wild, 19 Pick. 520; Phil - Boynton V. Warren, 'jy iSIass. 172. lips v. Bri(Ifj,e, 11 Mass. 242; Cooper v, ■^ Donliam ;;. Wild, V.) Pick. 520 ; -Jen- INIowry, 16 Ibid. 6. ney v. Delesdernier, 20 Maine, 183; Rice ^ Pierce v. Strickland, 2 Story, 292. i;. Wilkins, 21 Ibid. 558 ; Farnhani v. Gil- •> Johnson v. Edson, 2 Aikens, 299. man, 24 Ibid. 250. '' Gilbert v. Crandall, o4 Vermo nt 8 Pierce v. Strickland, 2 Story, 292. 188. 20 [305] § 363 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. § 363. On this point, we find the Superior Court of New Ilcimpshire 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. " There 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- ing. It is true that when goods are attached, the sheriff may re- tain 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 such as prudent men would have thought it safe to trust, for safe keeping, he is not liable, if the goods [306] CHAP. XrV.] BAILMENT OF ATTACHED PROPERTY. § 367 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 reasoning 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 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 difi"erently ; 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 1 Runlett V. Bell, 5 New Hamp. 433 ; 3 Bissell v. Huntington, 2 New Ilamp. Howard v. Whittemore, 9 Ibid. 134 ; Bruce 142. V. Pettengill, 12 Ibid. 341. * Waterman v. Robinson, 5 Mass. 303. - Barron v. Cobleigh, 11 New Hamp, 557. [307] 5 368 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. ■\vheve 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 ; ^ 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, held, 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 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 1 Liulden v. Leavitt, 9 Mass. 104 ; Per- ley V. Foster, Ibid. 112 ; Warren v. Leland, Ibid. 205; WhiUier v. Smith, 11 Ibid. 211 ; Bond v. Padelfbrd, 13 Ibid. 394 ; Commonwealth v. Morse, 14 Ibid. 217 ; Brownell v. Manchester, 1 Pick. 232. '^ Dillenback v. Jerome, 7 Cowen, 294 ; Norton v. People, 8 Ibid. 137 ; Mitchell v. Hinman, 8 Wendell, 667. [308] 3 Miller v. Adsit, 16 Wendell, 335. 4 Poole V. Symonds, 1 New Hamp. 289 ; Wliitney v. Farwell, 10 Ibid. 9. 5 Thayer v. Hutchinson, 13 Vermont, 504. 6 Burrows v. Stoddard, 3 Conn. IGO. 7 Story on Bailments, § 133. 8 2 Kent's Com. 568, note e. CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 371 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 ab- solute.' As has been before stated,^ it depends upon the officer's liability for the property, either to the plaintiff, the defendant, the owner of it, or a subsequent attaching creditor, who, by placing a second writ in the hands of the same officer who seized the goods in the first place, has succeeded in obtaining a valid lien on the property. If the officer 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 1 Bond V. Padelford, 13 Mass. 394 ; ^ Story on Bailments, § 132. Merrill v. Curtis, 18 Maine, 272. 8 Ante, §§ 354, 355. 2 Sibley t-. Story, 8 Vermont, 15. 9 In Holt v. Burbank, 47 New Ilamp. 3 Clark V. Morse, 10 New llamp. 236. 164, tlie Supreme Court of New Ilamp- * Ante, § 357; Denny r. Willard, 11 shire said: " No special contract not un- Pick. Ol'J; Robinson y. Mansfield, 13 Ibid, der seal can be made which will extend 130. the receiptor's liability beyond an indem- 5 Eldridge v. Lancy, 17 Pick. 352. nity to the officer; -for the officer's special ^ Cross V. Brown, 41 New Ilamp. 283. property depends upon his liability over." [309] §372 BAILMENT OP ATTACHED PROPERTY. [CHAP. XIV. may maintain trover,^ trespass,^ and replevin,^ for any violation of liis 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 liis 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.^ 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.^ 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;^ or the deputy may sue thereon ; '-^ 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 1 Ludden v. Leavitt, 9 Mass. 104 ; Badlam v. Tucker, 1 Pick. 389 ; Lowry v. Walker, 5 Vermont, 181 ; Lathrop v. Blake, 3 Foster, 46. 2 Brownell v. Manchester, 1 Pick. 232 ,• Badlam v. Tucker, Ibid. 389 ; Walker V. Foxcroft, 2 Maine, 270; Strout i-. Brad- bury, 5 Ibid. 313 ; Whitney v. Ladd, 10 Vermont, 165. 3 Perley v. Foster, 9 Mass. 112 ; Gor- don V. Jenney, 16 Ibid. 465. * Brownell v. Manchester, 1 Pick. 232. [310] 5 Ludden v. Leavitt, 9 Mass. 104. 6 Allen V. Doyle, 33 Maine, 420. ^ Page V. Thrall, 11 Vermont, 230; Scott V. Whittemore, 7 Foster, 309. 8 Davis V. Miller, 1 Vermont, 9 ; Baker V. Fuller, 21 Pick. 318 ; Smith v. Wad- leigh, 18 Maine, 95. 9 Spencer v. Williams, 2 Vermont, 209. ^^ Hutchinson v. Parkhurst, 1 Aikens, 258. " Maxfield v. Scott, 17 Vermont, 634. CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 373 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.^ The 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.^ If the bailee has suffered the property to go 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 % 1 Bradbury v. Taylor, 8 Maine, 130. " Jameson v. Ware, 6 Vermont, 610 ; 2 Story on Bailments, § 107; Bacon v. Gilmore v. McNeil, 46 Maine, 532. Thorp, 27 Conn. 251. ^ Webster v. Coffin, 14 Mass. 106. » Carpenter v. Snell, 37 Vermont, 2.55. » Sliaw v. Laughton, 20 Maine, 266 ; < Bicknell v. Hill, 33 Maine, 297. Humphreys v. Cobb, 22 Ibid. 380 ; Went- * Gilmore v. McNeil, 46 Maine, 532. worth v. Leonard, 4 Cushing, 414 ; Hods- kin V. Cox, 7 Ibid. 471. [311] § 374 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. to such officer would be iu 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.^ § 374. 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- ble, have it demanded, within that time, of the officer who attached it, by the officer having 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- i Davis V. Miller, 1 Vermont, 9 ; and calls for a delivery of the property, Stewart v. Platts, 20 New Hamp. 476 ; without making known the authority he Cross V. Brown, 41 Ibid. 283. has to receive it, may be treated as a 2 Walbridge v. Smith, Brayton, 173. person without authority. The duty of In Phelps V. Gilchrist, 8 Foster, 266, making known his authority is on him Bell, J., said : " The receiptor is not who assumes to make a claim under it. bound, by law, or by his contract, to de- The party who is called upon is under liver the property to any deputy sheriflF no duty to inquire whether he has au- or other officer who may demand it. He thority or not." is not bound to take notice of the author- 3 Bicknell v. Hill, 33 Maine, 297. ity of other officers to have possession of * Howard v. Smith, 12 Pick. 202 ; it, until it is distinctly made known to Collins v. Smith, 16 Vermont, 9 ; Pear- him. He has a right to be satisfied that sons v. Tincker, 36 Maine, 384 ; Wetherell the stranger, who comes to him to de- v. Hughes, 45 Ibid. 61 ; Stackpole v. Hil- mand the goods, has a legal right to make ton, 121 Mass. 449. the demand, so tliat a delivery to him will & Blake v. Kimball, 106 Mass. 115. discharge his obligations upon his receipt. *" Humphreys v. Cobb, 22 Maine, 380. Anv such stranger who comes to him [312] CHAP. XIV.] BAILMENT OF ATTACHED PEOPEETY. § 376 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 sliould 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.^ § 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 the goods of the bailee, brought suit on the receipt, alleging a demand that 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 1 Humphreys y. Cobb, 22 Maine, 380 ; 5 Bliss v. Stevens, 4 Vermont, 88; Ayer I'. Jameson, 9 Vermont, 363. Allen v. Carty, 19 Ibid. 65; Carpenter 2 Huniplireys v. Cobb, 22 Maine, 380 ; v. Snell, 37 Ibid. 255. The Supreme Ayer y. Jameson, 9 Vermont, 363; Col- Court of this State once held that the lins V. Smith, 16 Ibid. 9. demand must be made within thirty days 8 Moore v. Fargo, 112 Mass. 254. after judgment. Strong v. Hoyt, 2 Tyler, * Webster v. Coffin, 14 Mass. 19G; 208. Colwell V. Richards, 9 Gray, 374. 6 Jameson y. Paddock, 14 Vermont, 491. [313] §377 BAILMENT OF ATTACHED PROPERTY. [CHAP. XlV.l elude it, and thus avoid his responsibility. One who makes a contract to deliver specific articles on demand, should be always ready at liis dwelling-house or place of business. A demand upon him personally, for goods which 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 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 ; which by no means necessarily 1 Mason v. Briggs, 16 Mass. 453. Sed contra, Phelps v. Gilchrist, 8 Foster, 266 ; where the Superior Court of New Hamp- shire take the opposite ground, and say : " A demand for these purposes is in its nature personal. It is a call by a person authorized to receive property, for its delivery, made upon the person who is bound to make such delivery. It must be such that the person required to de- liver tlie property may at once discharge himself by yielding to the claim and giv- ing up the property. Leaving a notice at a party's house is not of such a char- acter. It gives no opportunity for the party to do what is demanded, and it would be a sufficient answer for the de- fendant to make in such a case, that though he was notified to give up the property, no opportunity was afforded him to comply with the notice. No rea- sonable construction can hold a receiptor bound to deliver the property at any time and at any place where he may happen to be, and still less at any place where, after a demand left at his house, [314] he may happen to be able to find the attaching officer, or his agent. It forms no part of the contract of a depositary, a bailee to keep property without com- pensation, to carry the property to the depositor, in order to return it. It is entirely sufficient, that, having kept the property according to his contract in some reasonable and suitable place, he is there ready to deliver it. If a demand is made at any other place, the bailee is entitled to liave reasonable time and op- portunity to make the delivery at that place, and to require the party who calls for the property to be there to receive it. Any mode of making the demand which precludes the party from availing him- self of these rights, is clearly insufficient, and tlierefore, the leaving a written de- mand at a receiptor's house, is not evi- dence either of a breach of the receiptor's contract, or of a conversion of the prop- erty." See Gilmore v. McNeil, 46 Maine, 532 ; Sanborn v. Buswell, 51 New Hamp. 573. 2 Moore v. Fargo, 112 Mass. 254. CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 379 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 the 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.^ § 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 receiptors.^ § 379. Trover or replevin will lie against a receiptor, upon his refusal or neglect to comply with a demand for the delivery of the property ; ^ but assumpsit seems to be quite as much resorted 1 Phelps V. Gilchrist, 8 Foster, 266. ^ Bissell v. Huntington, 2 New Hamp. SeeMoorew. Fargo, 112 Mass. 254. 142; Cargill v. Webb, 10 Ibid. 199; ■^ Hinckley v. Bridgham, 46 Maine, Webb v. Steele, 13 Ibid. 230; Holt v. 450. Burbank, 47 Ibid. 164; Sibley v. Story, 2 Haynes v. Tenney, 45 New Hamp. 8 Vermont, 15 ; Pettes v. Marsh, 15 Ibid. 183. 454 ; Dezell v. Odell, 3 Hill (N. Y.), 215; * Griswold v. Plumb, 13 Mass. 298. Stevens v. Fames, 2 Foster, 568. ^ Fowles V. Pindar, 19 Maine, 420. [315] § 381 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. to in such cases. Trespass will not lie.^ Wliere the oflficer who 'j 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 dissolved.^ § 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 competent 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 the receipt, though the fact be that the attachment was a nom- inal one, and that the officer never did actually seize them ; ^ nor can he deny that the goods were delivered to him by the of- ficer ; ^ nor can he impeach the judgment in the attachment suit,^*' or show informality or irregularity in the attachment.^^ 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 ad- 1 Sinclair v. Tarbox, 2 New Hamp. Cady, 4 Ibid. 504; Allen v. Butler, 9 185. Ibid. 122; Stimson v. Ward, 47 Ibid. ■■i Ante, §§ 269, 356. 624 ; Bowley v. Angire, 49 Ibid. 41 ; 3 Whittier v. Smith, 11 Mass. 211; Phillips v. Hall, 8 Wendell, 610 ; Webb Whitney v. Farwell, 10 New Hamp. 9. v. Steele, 13 New Hamp. 230; Howes v. 4 Cargill V. Webb, 10 New Hamp. 199. Spicer, 23 Vermont, 508. 6 Baker v. Fuller, 21 Pick. 318; ^ Spencer v. Williams, 2 Vermont, Stevens v. Fames, 2 Foster, 568. 209 ; Allen v. Butler, 9 Ibid. 122. ^ Stevens v. Fames, 2 Foster, 568. '" Brown v. Atwell, 31 Maine, 351. ■? Taylor v. Nichols, 19 Vermont, 104. n Drew v. Livermore, 40 Maine, 266. 8 Jewett V. Torrey, 11 Mass. 219; i- Smith r. Brown, 14 New Hamp. 67 ; Lyman v. Lyman, Ibid. 317 ; Morrison v. Miller v. Clark, 8 Pick. 412 ; Laighton v. Blodgett, 8 New Hamp. 238 ; Spencer v. Lord, 9 Foster, 237. Williams, 2 Vermont, 209 ; Lowry v. [316] CHAP. XIV.] BAILMENT OF ATTACHED PEOPERTY. § 381 ditional plaintiff was introduced into the suit, it was held that, as the ofl&cer could not be made liable for the property to the plaintiff so brought in, he could not maintain an action on the re- ceipt.i ^ discharge of the defendant in bankruptcy, after judg- ment against him in the attachment suit, will not discharge the bailee ; ^ even if the petition in bankruptcy was filed before judgment was rendered ; ^ nor 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 i)lain- tiff for a larger amount than that under which the goods are de- manded ; ^ nor will an agreement between the plaintiff and the defendant in the attachment suit, that the former shall not en- force the receipt, and a forbearance accordingly to enforce it;^ nor will the fact that after failing to comply with the demand of the officer within a proper time, the bailee at a subsequent time showed the officer the property, and told him to take it." The question has arisen, whether a bailee can set up as a de- fence 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 Hability 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 1 Moulton V. Chapin, 28 Maine, 505. 6 ives v. Hamlin, 5 Gushing, 534. 2 Smitli V. Brown, 14 New Hanip. 67. '^ Scott v. Whittemore, 7 Foster, 309; 3 Towle V. Kobinson, 15 New Hamp. Hill v. Wiggin, 11 Ibid. 292. 408; Lamprey v. Leavitt, 20 Ibid. 544. 8 Smith v. Cudworth, 24 Pick. 196. * Twining v. Foot, 5 Gushing, 512. 9 Thayer v. Hunt, 2 Allen, 44'J. ^ Jenney v. Rodman, 16 Mass. 464. [317] § 383 BAILMENT OF ATTACHED PROrERTY. [CHAP. XIV. 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 jHI the property was not the defendant's, or that it was not subject ^■1 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 tlie 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 custody of the receiptor, this puts an end to the contract of bail- ment, and the officer cannot recover on the 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 tllat the plaintiff in the suit in which he became bailee, intended to contest the first at- tachment 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 1 Bacon v. Daniels, 116 Mass. 474; « Beach v. Abbott, 4 Vermont, 606; Stevens v. Stevens, 39 Conn. 474. This Rood v. Scott, 5 Ibid. 263. is tlie same ground as that talten in otlier * Whittier v. Smith, 11 Mass. 211. States in regard to defences against bail » Webster v. Harper, 7 New Hamp. bonds. See ante, § 323. 594. 2 Harmon v. Moore, 59 Maine, 428. [318] CHAP. XIV.] BAILMENT OF ATTACHED PKOPERTY. § 386 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 debtor ; 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 the bailee 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 .3 § 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 1 Kelly V. Dexter, 15 Vermont, 310. 3 Mitchell v. Goocli, 60 Maine, 110. 2 Sprague v. Wlieatland, 3 Metcalf, * Sliaw v. Laughton, 20 Maine, 266 ; 410 ; liutterfieUl i'. Converse, 10 Cusliing, Ant^ § 341. 817 ; Shumway v. Carpenter, 13 Allen, ^ Cross ;;. Brown, 41 New Hamp. 283. 68. r '^ Thayer i^. Hunt, 2 Allen, 449. [319] §388 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIvJ 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 tanto? § 387. Where a partnership gave a receipt for property which had been attached on a writ against a former partnership, com- posed in part of the same persons, the debts of which the re- ceiptors, as successors of the former firm, had agreed to pay, the receiptors, when sued on the receipt, were not allowed to contest its validity on the ground that the property of the n&'w partner- ship was not liable to attachment upon a demand against the old firm.^ § 388. We have seen ^ that the right of the officer to retake bailed property from the possession of the bailee depends on his liability therefor, either to tlie 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 still 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 the 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- 1 Scott V. Wliittemore, 7 Foster, 309 ; Anthony v. Comstock, 1 Rhode Island, 454 ; Gilmore v. McNeil, 46 Maine, 532. '^ Sewell V. Sowles, 13 Vermont, 171 ; Smith V. Mitchell, 31 Maine, 287. "* Morrison v. Blodgett, 8 New Hamp. 238, [320] * Ante, §§ 353, 354, 355. 5 Clark V. Gaylord, 24 Conn. 484 ; Fowler v. Bishop, 31 Ibid. 560 ; Drayton V. Merritt, 33 Ibid. 184 ; Sanford v. Pond, 37 Ibid. 588. 6 Whitney v. Farwell, 10 New Hamp. 9. CHAP. XIV.] BAILMENT OF ATTACHED PROPERTY. § 389 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 de- fendant'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 by the plaintiff against him for not having it in hand to satisfy the execution in the case, that 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 w^as 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 the property has been bailed, it being, as we have seen, a well-settled principle that the bailee's liability to the officer depends upon the officer's account- ability for the property to some one else, it follows, that, where the property is not the defendant's, the officer should not be al- lowed 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 aoainst the 1 Fisher v. Bartlett, 8 Maine, 122 ; 3 Ante, § 294 ; Fuller v. Holden, 4 Carr y. Farley, 12 Ibid. 328; Sawyer w. Mass. 498; Denny v. Willard, 11 Pick. Mason, I'J Ibid. 41); Moulton v. Cliapin, 519; Canada u. Southwick, 16 Ibid. 556 ; 28 Ibid. 505; Plaisted v. Hoar, 45 Ibid. Dewey v. Field, 4 Metcalf, 381 ; Sawyer 380; Harmon v. Moore, 59 Ibid. 428; w. Mason, 19 Maine, 49; Burt y. Perkins, Lowry v. Stevens, 8 Vermont, 113 ; Jame- 9 Gray, 317. son V. Paddock, 14 Ibid. 491; Frost v. * Fisher v. Bartlett, 8 Maine, 122; Kellogg, 23 Ibid. 308. Scott v. Wiiitteniore, 7 Foster, 309 ; 2 Whitney v. Farwell, 10 New Ilamp. Clark v. Gaylord, 24 Conn. 484. 9; Hill V. Wiggin, 11 Foster, 292. 21 [321] §391 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. bailee for it.^ In Louisiana, it would seem not to be necessary to show tliat 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 the 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 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 de- fendant'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 they 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, by reason of having given the receipt, and therein having acknowledged that the articles attached were the property of the defendant ; for the engage- ment was performed, and the estoppel could not be permitted to extend beyond the terms and duration of the contract.^ 1 Learned v. Bryant, 13 Mass. 224 ; Fisher v. Bartlett, 8 Maine, 122; Sawyer V. Mason, 19 Ibid. 49; Stanley v. Drink- water, 43 Ibid. 468 ; Quine v. Mayes, 2 Robinson (La.), 510; Lathrop v. Cook, 14 Maine, 414; Scott v. Wliitteraore, 7 Foster, 30S) ; Clark v. Gaylord, 24 Conn. 434 ; Burt v. Perkins, 9 Gray, 317. [322] 2 Quine v. Mayes, 2 Robinson (La.), 510. 3 Penobscot Boom Corporation v. Wil- kins, 27 Maine, 346. * Barron v. Cobleigh, 11 New Hamp. 557. 5 Johns V. Church, 12 Pick. 557 ; La- throp V. Cook, 14 Maine, 414. CHAP. XrV.] BAILMENT OF ATTACHED PROPERTY. § 393 § 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 re- peatedly held, that the bailee is estopped by the receipt from setting up property 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 re- ceiptor who conceals from the officer his ownership of the prop- erty, and suffers it to be attached as the defendant's, thereby 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 Massachusetts, that the bailee may set up property in himself, not as a bar to the action, but as showing the officer en- titled only to nominal damages ; ^ while in Vermont and in Cali- fornia 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 attach- ing officer.^ § 393. The only remaining topic in this connection is the measure 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 plaintiffs 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 has 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 1 Johns V. Church, 12 Pick 557 ; Rob- 2 Dgzell v. Odell, 3 Hill (N. Y.), 215. inson v. Mansfield, 13 Ibid. 139 ; Bursley 3 Bursley v. Hamilton, 15 Pick. 40. r. Hamilton, 15 Ibid. 40; Dewey u. Field, * Adams v. Fox, 17 Vermont, 361; 4 Metcalf, 381 ; Sawyer v. Mason, 19 Eleven v. Freer, 10 California, 172. See Maine, 49 ; Penobscot Boom Corporation Jones v. Gilbert, 13 Conn. 507. V. Wilkins, 27 Ibid. 345; Barron v. Cob- ^ Morse v. Hurd, 17 New Hamp. 246. leigli, 11 New Hamp. 557; Drew v. Liv- ermore, 40 Maine, 2(J0 ; Potter v. Sewall, 54 Ibid. 142. [323] § 395 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV. same time the propert}' 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 ;2 and of course the receiptor cannot give evidence that it was of less value.'^ In such case, where all the articles are valued at a gross sum, the receiptor cannot avoid his liability, pro tanto, by tendering to the officer part of the goods, unless he has a reasonable excuse for not delivering thq 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 ad- mitted 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 property, 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 necessary to satisfy the attachments.^ But where the bailee has converted the property to his own use, or still holds it, the officer is not onlj^ authorized, but obliged, to take judgment 1 Norris v. Bridgham, 14 Maine, 429; 3 Smith v. Mitchell, 31 Maine, 287. * Moulton V. Chajiin, 28 Ibid. 505; Farn- * Drown v. Smith, 3 New Hamp. 299; ham V. Cram, 15 Ibid. 79. Remick v. Atkinson, 11 Ibid. 256. 2 Parsons v. Strong, 13 Vermont, 235 ; 5 Remick v. Atkinson, 11 New Hamp. Drown v. Smith, 3 New Hamp. 299; 256. Remick v. Atkinson, 11 Ibid. 256; Jones ^ Cross v. Brown, 41 New Hamp. 283. V. Gilbert, 13 Conn. 507 ; Stevens v. Ste- "' Cross v. Brown, 41 New Hamp. 283. vens, 39 Ibid. 474. 8 Parnham v. Cram, 15 Maine, 79. [324] CHAP. XIV.] BAILMENT OF ATTACHED PEOPERTY. § 396 for the full value ; and if he take it for less, he will be lialDle 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 prop- erty. Judgment having 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 1 Bissell V. Huntington, 2 New Hamp. Sawyer v. Mason, 19 Maine, 49; Catlin 142 ; Whitney v. Tarwell, 10 Ibid. 9 ; v. Lowrey, 1 D. Chipman, 396. 2 Spear v. Hill, 52 New Ilamp. 323. [325] § 396 BAILMENT OF ATTACHED PROPERTY. [CHAP. XIV, 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 Paddock v. Palmer, 10 Vermont, '-* Stewart v. Platts, 20 New Hamp. 581 ; Brown v. Crockett, 22 Maine, 537. 476. [32G] CHAP. XV.] ATTACHMENTS IMPROVIDENTLY ISSUED, ETC. § 397 CHAPTER XV. ATTACHMENTS mPROVIDENTLY ISSUED, AND THE MEANS OF DEFEATING THEM. § 397. Issuing an attachment improvidently, is to be dis- tinguished 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 at- tachment 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 be 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 tlie 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 sliow 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 mis judgment in deciding upon the facts necessary to authorize the process; no excess of juris- diction, either in the nature of tlie 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 tliey are pre- sented in the statement of the applicant for the writ, and as thus presented they are sufficient. . . . The autliority of the justice does not depend in any degree upon the truth of the statement made by the applicant, and on tlie ground of which the attachment issues, but upon the 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 authority or ju- risdiction 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 authority in the officer to issue it, but on the ground that the statement which gave the authority in the particular case is untrue as to a fact, which, if truly stated, would have shown that there was no authority in the partic- ular case. Such proof might pe^-haps be sufficient, in a direct proceeding for the purpose, to authorize the annulment or vacation of the process ; it would certainly be sufficient 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, — fundus 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 au- thority, it is, therefore, still sufficient to [327] § 400 ATTACHMENTS IMPROVIDENTLY ISSUED, [CHAP. XV. § 398. Where, as in the New England States, under the ordi- nar}' process of summons an attachment may be made, if the phiintiff 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- lege 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 provision, 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,^ it is not so; but, as the following review will 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. § 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 affidavits ffied 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- justify the immediate acts which it com- Stewart, 226. This opinion, however, manded.tliough not tending to justify the was afterwards in effect overruled in illegal act of obtaining it upon a false Middlebrook v. Ames, 5 Stewart & Porter, statement, or the actual injury conse- 158. Subsequently, by statute, the defend- quent upon that 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, - Taylor v. Ricards, 9 Arkansas, 378 ; it was held, in Jones v. O'Donnell, 9 Ala- Mandel v. Peet, 18 Ibid. 236. bama, 695, to apply as well to an ancil- 3 Cloud V. Smith, 1 Texas, 611. In lary attacliment, 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 affiilavit were trav- ■* Lenox v. Howland, 3 Caines, 323. ersable, and might be investigated and See Orton v. Noonan, 27 Wisconsin, 572. decided by a jury. Brown v. Massey, 3 [328] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. 401 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.i 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 presented.2 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 mo- tion, though the Code gives no authority for such a proceeding.^ On such a motion the defendant may introduce afl&davits 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 opportunity, or an excuse be shown for not so making it. It comes too late after judgment.^ But where it was made be- fore 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 held, that the motion might be heard and passed upon after the entry of the judg- ment.^ § 401. In 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.^ 1 Ex parte Cliipman, 1 Wendell, 66. 444. See Foster v. Dryfus, 16 Indiana, 2 Matter of W^arner, 3 Wendell, 424. 158. 3 Morgan y. Avery, 7 Barbour, 656; ^ Thompsons. Culver, 15 Abbott Pract. Genin v. Tompkins, 12 Ibid. 265. 97 ; 38 Barbour, 442 ; 24 Howard Pract. 4 Canimann v. Tompkins, 1 Code Re- 286. ports, 12; St. Amant v. De Beixcedon, 3 '' Vienne v. McCarty, 1 Dallas, 165. Sandford Sup. Ct. 703. ^ Vienne v. McCarty, 1 Dallas, 165, 5 Lawrence v. Jones, 15 Abbott Pract. note a. See Ferris v. Carlton, 8 Phila- 110: Swezey v. Bartlett, 3 Ibid. n. s. delphia, 549. [329] § 404 ATTACHMENTS TMPROVIDENTLY ISSUED, [CHAP. XV. It is tlie 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 would be at- tended with the most pernicious consequences ; " and intimated 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 re- sorted 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 of domestic attachment, it was held, that " a shorthand method of quashing 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 1 Boyes v. Coppinger, 1 Yeates, 277. * Lambden v. Bowie, 2 Maryland, 334 ; 2 Branson v. Shinn, 1 Green, 250 ; Cover v. Barnes, 15 Ibid. 576 ; Hardesty City Bank i-. Merrit, Ibid. 131 ; Day v. v. Campbell, 29 Ibid. 533. Bennett, 3 Harrison, 287 ; Shadduck v. ^ Havis v. Trapp, 2 Nott & McCord, Marsh, 1 Zabriskie, 434; Phillipsburgh 130. Bank y. Lackawanna R.R. Co., 3D utcher, « Wheeler v. Degnan, 2 Nott & Mc- 206. Cord, 323. 3 Campbell v. Morris, 3 Harris & Mc- Henry, 535. [330] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. § 406 a quash an attachment by an affidavit ; and the propriet}' of a plea in abatement, and a trial of the issue by a jury, was recognized.^ § 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 de- cisions 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 contro- vert the affidavit.^ And in no case wall 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.^ § 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." ^ 1 Shrewsbury v. Pearson, 1 McCord, * Bates v. Jenkins, 1 Illinois (Breese), 331. Appendix, 25. 2 Harris v. Taylor, 3 Sneed, 536 ; « Meggs v. ShaflPer, Hardin, 65 ; Linds- Isaacks v. Edwards, 7 Humphreys, 465; ley v. Malone, 23 Penn. State, 24; Hatry Dunn I'. Myres, 3 Yerger, 414. v. Sliuman, 13 Missouri, 547 ; Cannon 3 Meggs V. Shaffer, Hardin, 65 ; Moore v. McManus, 17 Ibid. 345 ; Collins v. V. Hawkins, 6 Dana, 289 ; Lovier v. Gil- Nichols, 7 Indiana, 447. Sed contra, pin, Ibid. 321. Hawkins v. Albright, 70 Illinois, 87. * Voorhees v. Hoagland, 6 Blackford, ^ Moore v. Hawkins, 6 Dana, 289. 232; Abbott v. Warriner, 7 Ibid. 573; ® Archer y. Claflin, 31 Illinois, 306. Excelsior Fork Co. v. Lukens, 38 Indiana, ^ Schlemmer v. Myerstein, 19 Howard 438. Pract. 412. [331] § 409 ATTACHMENTS IMPROVIDENTLY ISSUED, [CHAP. XV. § 407. A plea in abatement, where allowed, must directly and fully negative the allegations of the affidavit. 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.^ 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 ; ^ 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.^ In Nebraska, however, when the cause of attachment is denied by the defendant, the burden of proof is thrown upon the plaintiff, and if nothing appear to authorize greater credit to be given to his statements than to those of the defendant, the attach- ment will be discharged." In Ohio, too, a denial by the defend- ant of the ground of attachment, throws the burden of proof on the plaintiff.^ § 409. In Missouri, the right conferred upon the defendant by statute, to contest the truth of the plaintiff's affidavit, by a plea "in the nature of a plea in abatement," has given rise to a num- 1 White V. Wilson, 10 Illinois (5 Gil- ^ Brumgard y. Anderson, 16 Louisiana, man), 21. 341 ; Offut v. Edwards, 9 Robinson (La.), '^ Armstrong v. Blodgett, 33 Wiscon- 90 ; Simons v. Jacobs, 15 Louisiana An- sin, 284. nual, 425. 8 Louisiana Code of Practice, Art. 258. '^ Moore v. Angiolette, 12 Martin, 532. * Read v. Ware, 2 Louisiana Annual, 7 Ellison v. Tallon, 2 Nebraska, 14. 498. 8 Coston v. Paige, 9 Ohio State, 397. [332] CHAP. XV.] AND THE MEANS OF DEFEATING THEM. 409 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 tlie 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." 1 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 ;2 and therefore not amendable after demurrer ;3 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- davit, he had 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 j)lead 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 1 Revised Statutes of Missouri of 1845, * Cayce r. Ragsdale, 17 Missouri, pp. 139, 140. 32. 2 Livengood v. Shaw, 10 Missouri, ° Hatry v. Sliuman, 13 Missouri, 547 ; 273; Hatry v. Sliuman, 13 Ibid. 547. Cannon v. McManus, 17 Ibid. 345. 3 Livengood v. Shaw, 10 Missouri, 273. [333] § 400 ATTACHMENTS IMPROVTDENTLY ISSUED, [CHAP. XV. 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, that question cannot be investigated on a motion.^ And after the filing of a plea in abatement, it is not competent for the plain- tiff to dissolve his attachment, and carry on his action as if it had been conmienced 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 affi- davit, the defendant actually had absconded or absented herself, as charged.^ Under this plea the defendant cannot take ad- vantage of a misnomer. Elisha Swan and Nelson Deming were sued, and traversed the allegation that they were non-residents, 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.^ 1 Graham v. Bradbury, 7 Missouri, 438 ; Dider v. Courtney, 7 Ibid. 500. See 281. Oaborn v. Schiffer, 37 Texas, 434. '^ Graham v. Bradbury, 7 Missouri, ^ Temple v. Cochran, 13 Missouri, 116. 281 ; Searcy v. Phitte County, 10 Ibid. 269. 6 Swan v. O'Fallon, 7 Missouri, 231. 8 Mense v. Osbern, 6 Missouri, 644. ^ Switzer v. Carson, 9 Missouri, 740. * Chenault v. Chapron, 5 Missouri, 8 Kritzer v. Smith, 21 Missouri, 296. [334] CHAP. XV.] AND THE MEANS OF DEFEATHSTG THEM. § 410 § 410. Where two several grouuds are stated in the affidavit for the attachment, and a plea in abatement is filed to the affi- davit, it is not necessary that both grounds should beproved, but the proving of either will be sufficient to sustain the attachment.^ 1 Tucker v. Frederick, 28 Missouri, 574. [335] § 414 DISSOI-UTION OF AN ATTACHMENT. [CHAP. XVI. CHAPTER XVI. DISSOLUTION OF AN ATTACHMENT. § 411. The dissolution 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 Avhich 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. ^ § 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- vantage 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 ; ^ 1 Ridlon V. Cressey, 65 Maine, 128. & Battle, 502 ; Stoney v. McNeill, Harper, 2 Stephenson v. Doe, 8 Blackford, 508. 166; Young v. Grey, Ibid. 38; Watson v. 3 Clapp y. Bell, 4 Mass. 99; Johnson McAllister, 7 Martin, 368; Enders v. V. Edson, 2 Aikens, 299; Suydam v. Steamer Henry Clay, 8 Robinson (La.), Huggeford, 23 Pick. 465 ; Brown d. Har- 30; Symons v. Northern, 4 Jones, 241 ; ris, 2 G. Greene, 605; Harrow ?;. Lyon, Judah v. Duncan, 2 Bailey, 454; Gill v. 8 Ibid. 157. Downs, 26 Alabama, 670; Memphis R. * Garmon v. Barringer, 2 Devereux R. Co. v. Wilcox, 48 Penn. State, 161. [336] 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 him, if he fails to plead to the merits, whether he was served with process or not ; ^ but not so in Louisiana or Illinois, if he was not so served.3 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 him, is held not to be a general appearance, author- izing a personal judgment against him.* § 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 mo- tion to dissolve. The scrutiny will not extend beyond the rec- ord ; 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 taken out by a corporation, the court will not, on such a motion, 1 Carr v. Coopwood, 24 Mississippi, 53; Wright v. Smith, 19 Texas, 207; 256. Hill V. Cunningham, 25 Ibid. 25. 2 Whiting V. Budd, 5 Missouri, 443 ; ** Freeborn v. Glazer, 10 California, Evans v. King, 7 Ibid. 411. 337. 3 Bonner v. Brown, 10 Louisiana, 334; ^ Lindner v. Aaron, 5 Howard (Ml.), Johnson v. Buell, 26 IlUnois, 66. 581 ; Spear v. King, 6 Smedes & Mar- 4 Kiemm v. Dewes, 28 Illinois, 317; shall, 276; Jackson v. Stanley, 2 Ala- Jones y. By rd, 74 Ibid. 115. bama, 326; Lowry v. Stowe, 7 Porter, 5 Baldwin v. Conger, 9 Smedes & 483 ; Calhoun v. Cozzens, 3 Alabama, 21 ; Marshall, 616 ; Hill v. Bond, 22 Howard Goddard v. Cunningham, 6 Iowa, 400. Pract. 272; Cooper r. Reeves, 13 Indiana, 22 [337] § 417 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. allow the defendant to show that the corporation had no power under its charter to execute the bond.^ In Pennsylvania, 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.2 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.* § 41G. 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.^ § 417. The issue of an attachment on Sunday is at common law an irregularity, which, if appearing on the face of the writ, 1 Bank of Augusta v. Conrey, 28 Mis- shall, 441 ; Wharton v. Conger, 9 Ibid. sissippi, 667. 610. 2 Downing v. Pliillips, 4 Yeates, 274. '^ Blake v. Camp, 45 Georgia, 298. 3 Fisher v. Consequa, 2 Washington '' Woodley v. Shirley, Minor, 14. C. C. 382 ; Clark v. Wilson, 3 Ibid. 560. » Lovelady v. Harkins, 6 Smedes & 4 James v. Dowell, 7 Smedes & Mar- Marshall, 412 ; Clanton v. Laird, 12 Ibid, shall, 333. 568 ; McClanahan v. Brack, 46 Missis- s Byrd v. Hopkins, 8 Smedes & Mar- sippi, 246. [338] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 419 will justify the quashing of it. But if it do not so appear, the court, loliere 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 ; 2 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 try 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- fectively 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 curioi to move to quash an attachment for irregularities •,'^^ but I have not noticed the existence of such a practice in any other State. § 419. The question whether one not a party to the record, but who has an interest in the attached property, can make a motion 1 Matthews v. Ansley, 31 Alabama, 20. ^ Wilson v. Danforth, 47 Georgia, 676. 2 Fisher v. Taylor, 2 Martin, 79, 113; ^ Cope v. U. M. M. & P. Co., 1 Mon- Sniith V. Elliott, 3 Ibid. 366; Reiss v. tana, 53. Bratly, 2 California, 132. ^ Brown v. Ainsworth, 32 Georgia, 487. 3 Lord V. Gaddis, 6 Iowa, 57. 9 Hathaway v. Davis, 33 California, * Alexander i;. Brown, 2 Disney, 395; 161. Miller v. Chandler, 29 Louisiana Annual, ^ Planters and Merchants' Bank v. 88. Andrews, 8 Porter, 404. 5 Langdon v. Conklin, 10 Ohio State, 439 ; Mitchell v. Skinner, 17 Kansas, 563. [339] § 422 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. to quash the attachment, arose in Alabama, 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 the 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. ^^ § 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 1 May V. Courtnay, 47 Alabama, 185. Ellison v. Mounts, 12 Ibid. 472; Gill v. 2 Cockrell v. McGraw, 33 Alabama, Downs, 22 Ibid. 670 ; Miller v. Spreelier, 526. 2 Yeates, 162; Brown v. Ridgway, 10 3 Burch V. Watts, 37 Texas, 135. Penn. State, 42; Lindsley v. Malone, 23 4 Expai-te Putnam, 20 Alabama, 592. Ibid. 24. 5 Reynolds v. Bell, 3 Alabama, 57 ; '^ Reynolds v. Bell, 3 Alabama, 57. Massey v. Walker, 8 Ibid. 167; Ellison v. » Cobb v. O'Neal, 1 Howard (Mi.), Mounts, 12 Ibid. 472; Hudson ?;. Daily, 581; Freeborn v. Glazer, 10 California, 13 Ibid. 722; Gee v. Alabama L. I. & T. 337. Co., Ibid. 579 ; Gill v. Downs, 26 Ibid. 9 Elliott v. Jackson, 3 Wisconsin, 649. 070. 1" GrJswold v. Sharpe, 2 California, 17. 6 Massey v. Walker, 8 Alabama, 167 ; ^^ Talbot v. Pierce, 14 B. Monroe, 195. [340] CHAP. XYI.] DISSOLUTION OF AN ATTACHJVEENT. § 422 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 eifect 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 seques- tration 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 distribu- tion of the estate must necessarily be final. Upon the appoint- ment of an administrator, who takes the property as trustee for all the creditors, all attachments on mesne process are dis- solved." 1 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." '^ 1 Davenport v. Tilton, 10 Metcalf, 320. to a new action against the executor or - Vaugiin V. Sturtevant, 7 Rhode Is- administrator of the deceased, in which land, 372. The court said : " By the the writ wouhl authorize neither an arrest common law, tlie death of a sole defend- nor an attachment of real estate. From ant at any time before final judgment none of these consequences is the surviv- would have abated the suit altogether, ing party saved except by the provisions and no judgment could have been ren- of Ch. 161 of the Revised Statutes [of dered therein. Tlie suit must have been 1857] referred to ; and these do not de- dismissed ; any attachment made therein clare that the action shall not abate, or dissolved and lost ; and the plaintiff put that it shall survive with all the iuci- [341] § 422 DISSOLUTION OF AN 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 the 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 : " 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 they 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 pendency 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 was in effect to hold that the attachment was not dissolved by the death of the defendant.^ dents it originally had ; but that instead scribed. It is equally clear, that the lien of being dismissed, it may be made to now claimed by the plaintiff is not saved answer the purposes of the new suit by those provisions, either expressly or which a dismissal of the action would impliedly, and that no execution can render necessary. This is to be done by issue against the real estate of the orig- compelling the new parties necessary to inal defendant which had been attached." such new suit to become parties to this. The court reasserted these views in and allowing the action then to proceed Upham v. Dodge, 11 Rhode Island, 621. as if the suit had originally been between i Fitch v. Ross, 4 Sergeant & Rawle, them, and the deceased had never been 557. a party." The court then noticed, in ^ Pancost v. Washington, 5 Cranch, detail, tiie statutory provisions, and said : C. C. 507. "It is quite clear, that these provisions ^ Collins v. Duffy, 7 Louisiana An- save nothing of the incidents of an abate- nual, 39. ment of the original suit, except that the ■* Green v. Shaver, 3 Humphreys, 139. action is allowed to proceed with the ° Perkins v. Norvell, 6 Humphreys, new parties, and in the manner pre- 151. [342] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 423 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 Iowa.'' 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.^ § 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.^ 1 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 2 Myers v. Mott, 29 California, 359 ; Pract. 243. Hensley v. Morgan, 47 Ibid. 622. ^ White v. Heavner, 7 "West Virginia, 3 Harrison v. Renfro, 13 Missouri, 446. 324. * Kennedy i-. Raguet, 1 Ray, 484; 1 Lord j;. Allen, 84 Iowa, 281. Crocker v. Radcliffe, 1 Constitutional ^ Holman v. Fisher, 49 ^Mississippi, Court (Treadway), 83. 472. 5 Moore v. Thayer, 10 Barbour, 258 ; 9 Loring v. Folger, 7 Gray, 505. [343] § 425 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. § 424. The same views wliicli would abate or dissolve an attaehment 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 a lien, 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 is 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- xwpicyp- In this judgment, that learned jurist stood opposed by every other tribunal in the 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 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 Maine,^ New Hampshire,'' Massachusetts,^ 1 Bowker v. Hill, 60 Maine, 172 ; * Uowner v. Brackett, 5 Law Reporter, Farmers and Mechanics' Bank u. Little, 392; 21 Vermont, 599; Rowell's Case, 8 Watts & Sergeant, 207 ; Paschall v. 6 Law Reporter, 300 ; 21 Vermont, 620. Whitsett, 11 Alabama, 472. In Lindell ^ Haughton v. Eustis, 5 Law Reporter, V. Benton, 6 Missouri, 361, it was held, 505. that the civil death of a corporation, ^ Franklin Bank v. Batchelder, 28 after the garnishment of its debtor, did Maine, 60. not prevent the subjection of the gar- "^ Kittredge v. Warren, 14 New Hamp. nishee to liability. 509 ; Kittredge v. Emerson, 15 Ibid. 227 ; 2 Foster's Case, 2 Story, 131 ; Bellows Buffum v. Seaver, 1(5 Ibid. 160. See and Peck's Case, 3 Story, 428. Peck v. Jenness, 7 Howard Sup. Ct. 612. 3 Fisher v. Vose, 3 Robinson (La.), 457. ^ Davenport v. Tilton, 10 Metcalf, 320. [344] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 426 New Jersey,! and Mississippi,^ all concurred in that result. The Supreme Court of Connecticut, in a case arising under the Bank- rupt Act of 1800, also held views opposed to those of Justice Stoey.3 When to these adverse opinions we add the numerous 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.^ If he fail to make such return, he is liable for the property. And he cannot screen him- self 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 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.^ 1 Vreeland v. Brown, 1 Zabriskie, 214. witliin four months next preceding the 2 Wells V. Brander, 10 Smedes & Mar- commencement of the proceedings in shall, 348. bankruptcy. 3 Ingraham v. Phillips, 1 Day, 117. ^ Felker v. Emerson, 17 Vermont, * Ante, § 224. 101 ; McReady v. Rogers, 1 Nebraska, * This section does not refer to the 124. General Bankrupt Act of March 2, 1867 ; ^ Blake v. Shaw, 7 Mass. 505.^ See under which the assignment of the bank- Snead v. Wegman, 27 Missouri, 170. rupt's effects operates as a dissolution of » Livingston v. Smith, 5 Peters, 90. any attachment of his property made [345] § 428 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. The same obligation to return the attached property to the owner rests npon 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. ^ Primd 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, that 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.^ § 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- mands 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. 1 Levy V. McDowell, 45 Texas, 220. * Levy v. McDowell, 45 Texas, 220 ; 2 Wheeler v. Nichols, 32 Maine, 233. State v. Fitzpatrick, 64 Missouri, 185. <* State V. Fitzpatrick, 64 Missouri, ^ Bissell v. Huntington, 2 New Hamp. 185. 142. 6 Sherrod v. Davis, 17 Alabama, 312. [346] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 428 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 property 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, without any order of the court, 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 such notice he 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 de- fendant. 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 1 Danforth v. Carter, 4 Iowa, 230. 2 Danforth v. Eupert, 11 Iowa, 547. [347] § 431 DISSOLUTION OF AN ATTACHMENT. [CHAP. XVI. 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 m 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 sub- sequent 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 i;ot affecting the merits of the plaintiff 's claim, 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 undue 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 1 Harrison v. Trader, 29 Arkansas, 85. * Murphy v. Crew, 38 Georgia, 139. 2 Caperton v. McCorkle, 5 Grattan, * Jackson v. Holloway, 14 B. Monroe, 177. 133. 3 Harrow v. Lyon, 3 G. Greene, 157. [348] CHAP. XVI.] DISSOLUTION OF AN ATTACHMENT. § 431 of part of the attached effects, and realize therefrom a sufficiency to pay the debt on which the attachment was obtained, it is held, 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 Marshall v. Town, 28 Vermont, 14. Note. — A large part of this Chapter, as arranged in previous editions, has been transferred to Chapter XII. ; tchich accounts for the hiatus in the section numbers at this point. In Chapters XI. and XII., the matter of dissolution of attachment by other means than those set forth in this Chapter is discussed. [349] § 437 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. CHAPTER XVII. NOTICE TO ABSENT DEPENDANTS 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 him, 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 him.^ And as in many cases the absence of the defendant would preclude the possibility of service of process on him, provision is usually made in 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 en- forced. § 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 the 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 Smedes & sippi, 648 ; Martin v. Dryden, 6 Illinois Marshall, 75 ; Ridley v. Ridley, 24 Missis- (1 Oilman ), 187. [350] CHAP. XVn.] NOTICE TO DEFENDANTS BY PUBLICATION. § 437 a proceedings void. When, therefore, notice to the defendant by publication 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 de- fendant 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 jDrotected.^ § 437 a. The fact of publication according to statutory require- ment, must appear in the record, or the judgment may be re- versed.^ It may apjDear either by the court's entering of record a finding of the fact, or by setting out in the record the evidence of publication ; ^ the former mode being much preferable. 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 may either appear by inserting the evi- dence in the record, or by a record finding that the publication has been made. If the statute do not require a particular mode of proof, but authorize 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 certifi- cate in the record that the publication has been made, it will be insufficient if the certificate do not follow the statutory authority. Thus, where the law authorizes publication to be shown by the certificate of the printer 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 cer- tificate to state the dates of the first and last papers containing the advertisement, the omission to state the date of the last paper 1 Paine v. Mooreland, 15 Ohio, 435 ; * Foyles v. Kelso, 1 Blackford, 215 ; Williams v. Stewart, 3 Wisconsin, 773 ; Haywood v. McCrory, 33 Illinois, 459 ; Beech v. Abbott, Vermont, 586 ; Mas- Haywood v. Collins, 60 Ibid. 2>'l%. sey V. Scott, 4'J Missouri, 278. Sedcotdra, ^ Haywood v. Collins, 60 Illinois, 328. Calhoun v. Ware, 34 Mississippi, 146. 6 Haywood v. McCrory, 33 Illinois, 2 King V. Vance, 46 Indiana, 246. 459 ; Haywood v. Collins, 60 Ibid. 328. 8 Bliss V. Heasty, 61 Illinois, 338. [36 § 440 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. vitiates the proof.^ And where the court makes a record finding of the fact of publication, it is not enough to find " that pul)lica- tion was made giving the defendant 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 correct- ness 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. In Missouri, where the statute required " the court to order a publication to be made, stating the nature and amount of the plaintiff 's demand," &c., it was held that stating in the no- tice " that an action of assumpsit for the sum of 1403.70 had been commenced against him," was a sufficient statement of the 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 $386.94," was uncertain upon the material point of the amount actually claimed; and the judgment was for that cause set aside.^ 1 Haywood v. McCrory, 33 Illinois, * Ford v. Wilson, Tappan, 235. 459. ^ Sloan v. Forse, U Missouri, 126. 2 Dow V. Wliitman, 36 Alabama, 604. See Freeman v. Thompson, 53 Ibid. 183. 3 Freeman v. Thompson, 53 Missouri, ^ Haywood v. Eussell, 44 Missouri, 183. 252. [352] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 442 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 suificient.^ § 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 suf- ficient notice of the date.^ § 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 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.'' 1 Durrossett's Adm'r v. Hale, 38 Mis- ^ Morgan v. Woods, 33 Indiana, 23. souri, 346. '' Parsons v. Paine, 20 Arkansas, 12-i. ^ Moore v. Stanley, 51 Missouri, 317. " Pyle v. Cravens, 4 Littell, 17; Law- 3 Harris v. Grodner, 42 Missouri, 159. lin v. Clay, Ibid. 283 ; Hunt v. Wickliffe, * Drew V. Dequindre, 2 Douglass, 93. 2 Peters, 201. 23 [353] § 445 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. § 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 j)ublication 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 May, was not good for a term of court beginning on the 25th of July.^ § 445, Where the law declared that no judgment should be entered on the attachment until the exj^iration of twelve months ; during which time the plaintiff should cause notice of the attach- ment to be advertised three weeks successively in a public news- paper ; publication at any time within the twelve months was considered sufficient.* 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.'^ 1 Swayze ?;. Doe, 13 Smedes & Mar- (5 Oilman), 270 ; Forsyth ?;. Warren, 62 shall, 317. Ibid. 68. 2 Haywood v. Russell, 44 Missouri, ■* Harlow v. Becktle, 1 Blackford, 237. 252. 5 Matter of Clark, 3 Denio, 167. 3 Vairin v. Edmonson, 10 Illinois [354] CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 446 « § 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 by 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 affidavit.^ But this waiver cannot so set up void proceedings as to make them valid ah initio as against rights ac- quired 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- gality of the publication, but becausje the judgment was rendered on insufficient evidence ; this was held to be an appearance to 1 Saffaracus r\ Bennett, G Howard ^ Freeman v. Tliompson, 53 Missouri, (Mi.), 277; Colwell v. Bank of Steuben- 183. ville, 2 Ohio, 229, 2d Edition, 377. ^ Williams v. Stewart, 3 Wisconsin, 773. [355] § 448 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. the merits and a submission to the juriscliction, 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.^ § 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 acquii»ed 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 the sale under them void.* And 1 Anderson v. Coburn, 27 Wisconsin, 558. 2 Zeigenhagen v. Doe, 1 Indiana, 206. 3 Warner v. Webster, 13 Ohio, 505. * Paine v. Mooreland, 15 Ohio, 435. In this case the action was ejectment, and the defendant claimed title under a sheriff's deed, made in pursuance of a sale under execution in an attacliment suit, where the notice required by statute was not given. Tliis title was impeached on the ground of the nullity of the proceed- ings in the attachment suit. We present the opinion of the court on this point. " Are the proceedings in attachment void 'i It is contended they are void, be- cause no notice of the pendency of the attacliment was given as required by the statute. If the jurisdiction of the court once attached, subsequent irregularities would render the judgment voidable only ; and it would remain valid until reversed, and cannot be impeached collat- erally. [356] " What, then, gives the court jurisdic- tion in a proceeding in attachments The filing of the proper affidavit, issuing the writ, and attaching the property. The moment the writ goes into the hands of the officer, he is authorized and required to seize the property. When this is done, the property is taken out of the posses- sion of the debtor into the custody of the law. The court have authority, at any time after the return of the writ, to direct property of a perishable nature to be sold. It is not until after the return of the writ that the clerk is directed to make out the advertisement, which the plaintiff is required to have published as the stat- ute directs. If he neglects to have such notice published, for six weeks succes- sively, the statute directs that the attach- ment shall be dismissed with costs. Here, then, for a period of six weeks, at least, if the publication of the notice only gives jurisdiction, the court both have and have not jurisdiction over the property seized in attachment. It is contended the court CHAP. XVII.] NOTICE TO DEFENDANTS BY PUBLICATION. § 448 it is SO ruled in Vermont,^ New York,^ Missouri,^ Iowa,'* and Ne- 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 by him, is wholly void, though property be attached.''' And in Michigan, under a statute in these words : " If a copy of the attachment shall not has no jurisdiction, and yet the statute autliorizes the court to exercise a judicial act over property attached, namely, to determine whether it is perishable, and if so, to direct its sale. Will it be contended, then, that the court has jurisdiction over perishable property before notice con- summated, but not over property not per- ishable' This is a distinction not au- thorized by the statute. " A court acquires jurisdiction by its own process. If the process of the court be executed upon the person or thing concerning which the court are to pro- nounce judgment, jurisdiction is acquired. The writ draws the person or thing within the power of the court ; the court once having by its process acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. This power or jurisdiction is acquired only by its process. To give jurisdiction is the object of process. The mode of execut- ing or serving process, is sometimes di- rected or permitted to be by notice of publication. All process issues under the seal of the court. Notice by publication is not process, but, in certain cases, in con- templation of law, is equivalent to service of process. The process in attachment is the writ authorizing and directing a seiz- ure of the property. No process is issued against the person, because the proceed- ing is in rem. The statute, however, re- gards it but just that notice should be given to the debtor, not for the purpose of giving the court jurisdiction over the subject-matter, but to permit tlie debtor to have an opportunity to protect his rights, and directs that the writ shall be quashed if it be not given. The distinc- tion is between a lack of power or want of jurisdiction in the court, and a wrong- ful or defective execution of the power. In the first instance, all acts of the court not having jurisdiction or power, are void, — in the latter, voidable only. A court, then, may act, first, without power or jurisdiction ; second, having power or jurisdiction, may exercise it wrongfully; or, third, irregularly. In the first in- stance, the act or judgment of the court is wholly void, and is as though it had not been done. The second is wrong, and must be reversed on error. The third is irregular, and must be corrected by mo- tion. The latter is where the power is rightfully exercised, but in an irregular way. Hence there is a vast distinction between a defect of power, a wrongful exercise of power, and an irregular exer- cise of power. " Now what has happened in this in- stance *? The court had the power, by the service of its process, to proceed and give judgment ; but a circumstance oc- curred, after having acquired such power, which forbade them the exercise of it ; but having it, they did exercise it, which was error. But it can only be corrected by a writ of error. " We rest the case nakedly, upon the ground, so far as the proceedings in attach- ment are concerned, that there was a judgment of a court of competent juris- diction, unreversed, conferring the power to sell the land in question, which can- not be impeached in this collateral way ; that the defects and irregularities com- plained of should have been remedied by writ of error, or motion." 1 Beech v. Abbott, 6 Vermont, 586. 2 Matter of Clark, 3 Denio, 167. * Hardin v. Lee, 51 Missouri, 241 ; Freeman v. Thompson, 5.3 Ibid. 183 ; Hol- land V. Adair, 55 Ibid. 40; Kane v. Mc- Cown, Ibid. 181 ; Johnson v. Gage, 57 Ibid. 160. * Gregg V. Thompson, 17 Iowa, 107. 5 Crowell V. Johnson, 2 Nebraska, 146. 6 Cooper V. Reynolds, 10 Wallace, .308. •^ Clark V. Bryan, 16 Maryland, 171 ; Haywood v. Collins, 60 Illinois, 328. [357] § 4:49 NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVII. have been served upon any of the defendants, and none of them shall appear in the suit, the plaintiff, on filing an alhdavit of the publication of the notice hereinbefore required for six successive weeks, may file his declaration in the suit, and proceed therein, as if a copy of such attachment had been served upon the de- fendants ; " it was held, that where there was no personal ser- vice, 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 attach- ment proceedings were void.^ And in Wisconsin, strict compli- ance with the requirements of the law in regard to pubHcation 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 publi- cation made before the complaint was filed, was held not to authorize the court to take jurisdiction of the action, and that a judgment rendered upon such publication was void.^ § 448 a. Where the law required the clerk issuing an order of publication to designate the newspaper in which 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 collaterally, or otherwise, and forms no bar to a recovery sought in opposition to it, nor any foundation for a title claimed under it;^ notwithstanding the statute law of the State expressly au- 1 King V. Harrington, 14 Michigan, * Kane v. McCown, 55 Missouri, 181. 532. 5 Ante, § 5 ; Eaton v. Badger, 33 New 2 Millar v. Babcock, 29 Michigan, 526. Hamp. 228 ; Carleton v. Washington Ins. 3 Anderson v. Coburu, 27 Wisconsin, Co., 35 Ibid. 162 ; Smith v. McCutchen, 558. 38 Missouri, 415; Abbott v. Sheppard, [358] CHAP. XVn.] NOTICE TO DEFENDANTS BY PUBLICATION. § 449 a thorize a judgment to be rendered against a defendant under such cii'cumstances.i 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, pro hae vice, as equivalent to a levy ,2 yet the indebtedness of the garnishee must be shown; 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 pubhca- 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. 44 Ibid. 273; Bruce v. Cloutman, 45 New Hamp. 37 ; Cooper v. Smith, 25 Iowa, 269. In Kansas, where property was attached, but the slieriff's return did not sliow it to be the property of the defendant ; and there was no service of process upon the defendant, but notice by publication; the judgment rendered in the case was held to be void, because such notice was available only when the plaintiff sought to subject the defendant's property to the payment of his claim ; that the attachment of property of the defendant must affirmativelj' appear ; and that the return did not show that any property of his had been attached. Repine v. McPherson, 2 Kansas, 340. 1 Pennoyer v. Neff, 95 United States, 714. 2 Thompson v. Allen, 4 Stewart & Porter, 184. 8 Haggerty v. Ward, 25 Texas, 144. The court said : " It is said to be well settled that a judgment against the de- fendant is an indispensable prerequisite to a judgment against tlie garnishee. In the present case the failure of the gar- nishee to answer is treated as furnishing a presumption of indebtednese by the garnishee to the defendant, equivalent to the service of the attachment upon the property or credits of the defendant, and giving the court jurisdiction to ren- der judgment against the defendant ; and thus the judgment against the defendant, which is an indispensable prerequisite to the judgment against the garnishee, is obtained ; and then the judgment against the defendant is, in its turn, made the measure of the liability of the garnishee. Now the judgment against the defendant was rendered at a time when the law raised no conclusive presumption that the garnishee was indebted to the de- fendant ; because, although the garnishee had failed to answer, it was his privilege to be again called into court, and when so called in, he would be permitted to show in answer to the scire facias any thing that he might have shown if he had come into court in the first instance, or any thing that he might show in an action by the defendant against him. The judgment against the defendant was, therefore, rendered at a time when the court had no jurisdiction to render such a judgment. The fact of the indebted- ness of tlie garnishee to the defendant was not ascertained, and was not shown to the court in any such conclusive man- ner as to authorize tlie court to treat the fact as ascertained, and to make it the basis of jurisdiction." [359] § 449 rt NOTICE TO DEFENDANTS BY PUBLICATION. [CHAP. XVH. and costs.i And in such cases, if the property attached be not sufficient to satisfy the judgment obtained, a further suit to re- cover 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 pro- ceeding was had.2 1 Henrie v. Sweasey, 5 Blackford, 273 ; Rowley v. Berrian, 12 Illinois, 198 ; Hob- son V. Emporium R. E. & M. Co. 42 Ibid. 306 ; Forsyth v. Warren, 62 Ibid. 68. 2 Bliss V. Heasty, 61 Illinois, 338. See ante, § 5. [360] CHAP. XVIII.] GAENISH3IENT. — GENERAL VIEWS. § 451 CHAPTER XVIII. ' GARNISmiENT. — GENERAL VLEWS.— DIVISION OF THE SUBJECT. § 450. We come now to that operation of an attachment, 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 is the sole and distinctive feature of attachment by the custom of London, from which, as before re- marked, 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 received the designation of garnishment,^ or warning, and the person in whose hands such effects are attached is styled a gar- nishee, because of his being garnished,'^ 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.^ This desig- nation 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 trustee process. In Vermont and Connecticut, he is also sometimes called a factor, and the process, factorizing process. The terms garnishment and garnishee being, however, so nearly of universal use, will be retained throughout this work. 1 In Kelham's Norman Dictionary the avoided the very prevalent corruption of original of this term is given, as follows : it into " garnishced," which disfigures Garnkr, garnisher, to warn, to sum- the Reports of this country. I have, mons. Garnishement, garnissement, with equal care, shunned the displace- GARNisHANT, GARNEYSEiNT, wamiug, mcut of the words " garnish " and " gar- summons, notice, nishing," by "garnishee^" (used as a 2 This being the first instance of the verb), and " garnisheeing." use of this word in tliis book, I deem it ^ Priv. Londini, 256 ; Comyns's Di- proper to remark, that I have studiously gest, Attachment, E. ^ [361] § 451 a GAENISHMENT. — GENERAL VIEWS. [CHAP. XVIII. § 451 a. Throughout the United States garnishment is a purely statutoiy proceeding, and cannot be pushed in its operation be- yond the statutory authority under which it is resorted to. Thus, unless the statute expressly so provide, no effects of the defend- ant coming into the garnishee's hands, or indebtedness accruing from the garnishee to the defendant, after the garnishment, 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 propounded 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 gar- nishee to open the safe and file an inventory of its contents ; the order was refused because there was no authority 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 knowl- edge ; it was held, that the garnishee could not be charged, be- cause it did not appear that the trunk contained attachable effects ; and the court, while recognizing the English doctrine, that an officer, in the service of an execution, may break open the de- fendant'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 interest in 1 Bliss V. Smith, 78 Illinois, 359 ; Hoflf- to enable the sheriff to execute the writ, man r. Fitzwilliam, 81 Ibid. 521. United States v. Graff, 67 Barbour, 304. 2 Tate V. Morehead, 65 North Caro- * Bottom v. Clarke, 7 Gushing, 487. Una, 681. See Welch v. Gurley, 2 Hay- But in Georgia, where a box was de- wood (N. C.), 334; Gee v. Warwick, posited by the defendant in the gar- Ibid. 354. nishee's store, without any liability being 3 Gregg V. Nilson, 1 Legal Gazette R. assumed by the latter in reference to it ; 128 ; 8 Philadelphia, 91. In New York, and after the garnishment he permitted an order by the court to the sheriff to the defendant to remove it ; he was open a safe and tin box in possession of charged as garnishee for the value of its such a company, and in which it was contents, upon the value being proved, claimed that there was property of the Loyless v. Hodges, 44 Georgia, 647. defendant, was sustained, as necessary [362] CHAP. XVni.] GARNISHMENT. — GENERAL VIEWS. § 451 h the debt, the request was refused, because the attachment 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 at- torney of a corporation was held insufficient to give the court jurisdiction of 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 interrogatories without notice ; and the 1 Sheedy v. Second Nat. Bank.. 62 Mississippi a case is reported where there Missouri, 17. was no service of process upon the gar- '^ Schindler v. Smith, 18 Louisiana nishee, but he appeared and answered, Annual, 476. The court said : " Tlie and the court took action on his answer ; garnishee, in the eyes of the law, is a but it does not appear tliat any question mere stakeholder, a custodian of tlie as to the legality of the proceeding was property attached in his hands ; he has raised ; and the case cannot therefore be no pecuniary interest in the matter ; he considered as militating against the posi- has no cost to pay, and therefore none to tion taken in the text. Roy v. Heard, 38 save ; his business is to let the law take Mississippi, 644. In Vermont, where the its course between the litigants; he has " trustee process " has the character and no right to accept or waive service of effect of a summons, it was decided that the proceeding, thereby favoring one service thereof on a trustee [garnishee] party at the expense and injury of an- by his accepting service, is valid to hold other, and creating actually a privilege the funds in his hands as against a sub- with priority in favor of one creditor to sequent assignee. Gaboon v. Morgan, tlie prejudice of another." See Citizens 38 Vermont, 234. Bank v. Payne, 21 Louisiana Annual, ^ Hebel v. Amazon Ins. Co., 33 Michi- 380; Hodges v. Graham, 25 Ibid. 365; gan, 400. Phelps (A Boughton, 27 Ibid. 592; Wood- ''Northern Central K. Co. v. Rider, folk V. Wliitworth, 5 Coldwell, 561. In 45 Maryland, 24. [363] § 452 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. judgment against him was set aside as against other creditors.^ But wliere 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 held, that the return day named in the writ was obviously a mere clerical error which did not invalidate the proceedings, and that the ap- pearance 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.^ § 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 plaintiffs name, against the garnishee, without reference to the defendant's concurrence, and, indeed, in 1 Southern Bank v. McDonald, 46 Mis- « In Strong v. Smith, 1 Metcalf, 476, souri, 31. See Desha v. Baker, 3 Arkan- the Supreme Court of Massachusetts sas, 509. said : " The trustee process operates as a 2 Wellover v. Soule, 30 Micliigan, 481. species of compulsory statute assignment, 3 Curry v. Woodward, 50 Alabama, by which a creditor may obtain that by 2.58. operation of law which his debtor might 4 Ante, § 206. voluntarily assign to him, in payment of •5 Norvell v. Porter, 62 Missouri, 309. his debt." [364] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 452 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 Uable to be met by any defence which the garnishee might make against an action by the defendant.! 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 that State, was summoned as garnishee. The question was whether, as the plaintiff 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 prohibiting 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 judgment already ren- dered. It may be used as a means to obtain satisfaction of a de- mand, in the same manner as a suit may be resorted to on a judg- ment of another State, with a view to coerce the payment of such 1 Daniels v. Clark, 38 Iowa, 556. Gorman v. Swaggerty, 4 Sneed, 560 ; 2 Post, § 464. Jones v. New York & Erie R. R. Co., 3 Moore v. Stainton, 22 Alabama, 831 ; 1 Grant, 457 ; Malley v. Altaian, 14 Wis- Travis v. Tartt, 8 Ibid. 574 ; Edmonson consin, 22 ; Caldwell v. Stewart, 30 Iowa, V. DeKalb County, 51 Ibid. 103. See 379; Delacroix v. Hart, 24 Louisiana Thorn v. Woodruff, 5 Arkansas, 65; Annual, 141. [365] § 453 GARNISIOIENT. — GENEEAL VIEWS. [CHAP. XVIII. judgment. In this proceeding the parties have day in court ; an issue of fact ma}^ 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 ob- tain judgment against the garnishee, and certainly cannot with any pkiusibility be treated as process of execution, or as part of the execution process ; for if so, there could be no necessity or propriety in resorting to this forum to investigate the relations of debtor and creditor." ^ § 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 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 which would interfere with its subjection to the payment of the plaintiffs 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, 1 Tunstall v. Worthington, Hempstead, stated in the text is tlie more proper one. 662. Sed contra, Kidderlin v, Myer, 2 In Illinois it was held, that garnishment Miles, 242. imposes no lien upon the effects in the ^ Kennedy v. Brent, 6 Cranch, 187 ; garnishee's hands, and does not put them Parker v. Kinsman, 8 Mass. 436 ; Blaisdell in custodia legis. Bigelow v. Andress, 31 V. Ladd, 14 New Hamp. 129 ; Burhngame Illinois, 322. In South Carolina, on the V. Bell, 16 Mass. 318 ; Swett v. Brown, other hand, the Court of Appeals said : 5 Pick. 178 ; Tindell v. Wall, Busbee, 3 ; " Our opinion is, that an actual seizure is Tillinghast v. Johnson, 5 Alabama, 514 ; notessential to create the attachment lien, Thompson v. Allen, 4 Stewart & Porter, but that the service of the writ on one in 184 ; Bryan v. Lashley, 13 Smedes & whose custody or control the assets of the Marshall, 284; Watkins v. Field, 6 Ar- absent debtor may be, is sufficient to make kansas, 391 ; Martin v. Foreman, 18 Ibid, the whole assets in his hands secure and 249 ; Hacker v. Stevens, 4 McLean, 535. liable in law, to answer any judgment 3 Walcott V. Keith, 2 Foster, 196 ; that shall be secured and awarded upon Moore v. Holt, 10 Grattan, 284 ; Johnson that process." Renneker v. Davis, 10 V. Gorham, 6 California, 195. It is a Richardson Eq. 289. In Vermont, gar- common expression by courts, that by nishment was termed an " inchoate lien." garnishment the plaintiff acquires a lien Wilder v. Weatherhead, 32 Vermont, 765. on the debt due from the garnishee to * Parker v. Farr, 2 Browne, 331 ; the defendant ; but perhaps the view Parker v, Parker, 2 Hill Ch'y, 35. [366] CHAP. XVni.] GARNISHMENT. — GENERAL VIEWS. § 453 a 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 ; * even though the attachment be against a person other than the osten- sible owner from whom the garnishee received them.^ He has no right to return to the defendant any of the effects of the latter which were in his hands when he was garnished, or which came into them afterwards, if the attachment legally binds effects sub- sequently received by him ; ^ nor can they be lawfully levied on and taken out of his possession ; "' 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 discharge the garnishee's lia- bility ; but it may furnish ground for delaying proceedings 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 afterwards hold the garnishee in respect thereof.^^ § 453 a. The position assumed 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 safely, and is 1 Hicks V. Gleason, 20 Vermont, 139; 99; Parker v. Parker, 2 Hill Ch'y, 35; Bank of the State of Missouri v. Bredovr, Loyless v. Hodges, 44 Georgia, 647. 31 Missouri, 523. ' Scholefield v. Bradlee, 8 Martin, 495 ; ^ Brashear v. West, 7 Peters, 608 ; Erskine v. Staley, 12 Leigh, 406. Mattingly v. Boyd, 20 Howard Sup. Ct. 8 Burlingame v. Bell, 16 Mass. 318 ; 128; Biggs v. Kouns, 7 Dana, 405. See Swett v. Brown, 5 Pick. 178. Staniels v. Raymond, 4 Gushing, 314, 9 Parker v. Kinsman, 8 Mass. 436. where, under the Massachusetts statute, ^0 Despatch Line v. Bellamy Man. Co., a view is entertained, which, so far as 12 New Hamp. 205. that State is concerned, materially mod- ii Despatch Line v. Bellamy Man. Co., ifies the garnishee's position. 12 New Hamp. 205. 3 Erskine v. Staley, 12 Leigh, 406. 12 Goddard v. Hapgood, 25 Vermont, < Walcott V. Keith, 2 Foster, 196. 351 ; Clapp v. Rogers, 38 New Hamp. 6 Stiles V. Davis, 1 Black, 101. 435. Aldrich v. Woodcock, 10 New Hamp. [367] § 453 a GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. 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 was 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.^ 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 choses 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 1 Baughu. Kirkpatrick, 54 Penn. State, himself have to say to the garnishee, ' you 84. The court said : " It is contended the shall not sell,' without tendering hira his attachment arrested their power to sell, advances and making him whole 1 Even leaving the goods tied up in their hands, an execution cannot be levied of goods in We cannot assent to this. We are bound pawn, so as to take them out of the to take notice of the general usages gov- pawnee's possession, without tendering erning the contracts of factors and com- him the money for which he holds them mission merchants. By the order to sell, in pledge. So here the garnishees, as and advances made by the factors, an in- factors to sell, having made advance- terest was acquired in the goods with a ments, had a power coupled with an in- right to sell which could not be aliected terest, which was irrevocable except upon by an after-attachment. It would be de- a tender of their charges. Added to the leterious to trade, and the rights of those injury to them by protracted storage, a engaged in it, to hold that goods for- fall in price might leave their advances warded to a factor to be sold, may be tied partially unprotected. If the plaintiff up in his hands until the creditor of the was desirous to retain the goods for an consignor is ready to proceed with his ex- advance in price, it was his duty to fur- ecution to convert them. . . . The attach- nish the money to reheve them of the ing creditor stands upon no higher footing lien of the garnishees, and to direct the than his debtors in relation to the gar- sheriff to take them into custody." nishee. What right would the debtor [368] CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 454 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 gar- nishment.^ § 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 a 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 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.^ So where, in a suit in favor of A. against B., in a Circuit Court of the United States, C. was garnished; against whom 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 his liability as garnishee should be passed upon by that court ; the injunction was refused, ^ Bank of the State of Missouri v. Bre- '^ Parker v. Farr, 2 Browne, 331. dow, 31 Missouri, b'li. * Wolf y. Tappau, 5 Dana, 361. ^ Parker v. Parker, 2 Hill Ch'y, 35. 24 [369] § 454 h GARNISHMENT. — GENERAL VIE\YS. [CHAP. XVIII. 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 gavnishnient.^ And it has likewise been held, that gar- nishment will not sustain a bill in equity to restrain the garnishee from disposing of tlie defendant's property in his hands, until the plaintiff could obtain judgment and execution against the gar- nishee.2 Much less is there any authority for a Court of Chan- cer}'- to attacli 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.* § 454 a. Garnishment can have no retroactive effect, so as to affect prior transactions between the garnishee and the defend- ant, 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.^ § 454 b. Garnishment can have no effect to overthrow trusts, in order to reach moneys supposed to belong to a debtor. What- ever mone}^ 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, 1 Arthur v. Botte, 42 Texas, 159. * Illinois C. R. R. Co. v. Weaver, 54 2 Bigelow V. Andress, 31 Illinois, 322. Illinois, 319. In New Hampshire, in an attachment pro- ^ Bailey v. Ross, 20 New Hamp. 302. ceeJing in equity, a bill to restrain a See Emerson v. Wallace, Ibid. 567. In garnishee from fraudulently putting his Whittier y. Prescott, 48 Maine, 367, it was property beyond the reach of legal pro- held, that one who had received a gratui- cess in order to prevent the collection of tons gift of money, will not be chargeable the judgment which he anticipates may therefor as garnishee of the donor, al- be rendered against him as garnishee, was though the debt sued for existeil prior to sustained. Moore v. Kidder, 55 New the gift, if the case does not disclose that Hamp. 488. the donor was insolvent or largely in- ^ Jones V. Huntington, 9 Missouri, debted. 249. [370] CHAP. XVIII.] GAENISHMENT. — GENERAL VIEWS. § 455 where a testator bequeathed to his son a sum of money "/or the sujyport 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, that 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 support of himself and family, and for no other purpose.'' To hold that under this will the son 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 mcome ... 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 of 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.^ § 455. In garnishment, as in the case of a lev}^ 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- 1 White V. White, 30 Vermont, 338. hams, 120 Ibid. 344 ; Hinckley v. Wil- '^ Keyser r. Mitcliell, G7 I'enn. State, hams, 1 Cusliing, 4U0; Mcllvaine v. 473. See Wliite y. Jenltiiis, 16 Mass. 62; Lancaster, 42 Missouri, 90; Lackland v. Brigden v. Gill, Ibid. 522 ; Hall v. Wil- Garesche, 56 Ibid. 267. [371] § 456 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVni. nishee, l\v 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 reacliing 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.^ And where one has been subjected to garnishment in different jurisdictions, and makes known to the court in which he was last served the fact of the previous garnishment, 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 by 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. 1 Wilder v. Weatherhead, 32 Vermont, Griffith, 2 Cranch C. C. 199; Arledge u. 765 ; Ante, § 262. White, 1 Head, 241. 2 Erskine v. Staley, 12 Leigh, 406; ^ Woodruff r. French, 6 Louisiana An- Moore v. Holt, 10 Grattan, 284 ; Talbot nual, 62. V. Hardin<;, 10 Missouri, 350 ; Johnson v. [372] CHAP. XVin.] GARNISHMENT. — GENERAL VIEWS. § 457 § 457. It is necessary, in the first place, to bear in miind, that, wherever the distinction exists between common law and chan- cery jurisdiction, courts of law cannot nndertake, by garnish- ment, to settle equities between the parties, in order to subject an equitable demand, which the defendant may have against the 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 this pur- pose.2 Thus, where a garnishee was sought to be charged on the 1 In Hassie v. G. I. W. U. Congrega- cise jurisdiction in equity, it will hardly tion, 35 California, 378, the court made be contended, we think, that our attach- the following judicious remarks upon the ment laws should be read as conferring suggestion contained in this sentence: it, unless — which they do not — they " In view of the fact that, under our sys- contain expressions admitting of no other tem of practice, law and equity jurisdic- construction. If we admit that the equi- tions are blended, it is claimed that the table rights of the defendant can be mere equitable rights of the defendant reached in that way, we must go to the may be reached by this process, and a length of holding that our Justices' suggestion that such may be the case, Courts can take cognizance of them, and thrown out by Drake in his work on At- must, if called upon, ascertain and con- tachment (§ 457), is cited in support of demn them to the use of the plaintiff, the doctrine. Whatever weight there however difficult the undertaking may might be in the suggestion, if our attach- be, or however inadequate the powers of ment laws were administered only by our those courts, or however incompetent District Courts, there certainly can be no their presiding officers. To such a length weight attached to it, in view of the fact we are not prepared to go, until required that our attachment laws are made appli- to do so in language which will admit of cable to Justices' Courts. If our District no other interpretation." Courts can pursue the equitable rights or ^ Harrell v. Whitman, 19 Alabama, claims of tlie defendant, and subject them 135; Thomas v. Hopper, 5 Ibid. 442; to the satisfaction of the plaintiff's judg- Hoyt v. Swift, 13 Vermont, 121) ; May v. ment, by parity of reason our Justices' Baker, 15 Illinois, 89; Webster v. Steele, Courts may do the same thing. Inde- 75 Ibid. 544 ; Perry v. Thornton, 7 Rhode pendent of tiie question whether Justices' Island, 15 ; Clarke v. Farnum, Ibid. 174 ; Courts under our Constitution can exer- Williams v. Gage, 4'J Mississippi, 777 ; [373] ^ 4o9 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIIT. ground that he was indebted to the defendant in respect of a partnership which had existed between them, but the accounts of Avhich had not been settled, it was lield, that the proceeding coukl not be sustained ; that tlie 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 at- tachment 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.^ § 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 remedy against the latter is at an end, so is his recourse against the garnishee. That the latter may show that the plaintiff's right against him has been thus terminated, cannot be doubted. Thus,' where one was garnished under an execution, he was per- mitted to show by a previous execution in the same case, that Mass. Nat. Bank v. Bullock, 120 Mass. 86 ; Sheedy v. Second Nat. Bank, 62 Missouri, 17. In Godden u. Pierson , 42 Alabama, 370, it was held, that the i)laintifl: will not be permitted, in order to charge a garnishee, to affirm the validity of the sale of certain property by the defendant to the garnishee, in order to subject him to tlie payment of the purchase- money therefor, and at the same time attack the sale for fraud. 1 Burnham v. Hopkinson, 17 New Hamp. 259 ; 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 tlie debtor's interest in the partnership. Treadwell v. Brown, 43 New Hamp. 2'JO. [374] 2 Post, § 660 ; Harris v. Phoenix Ins. Co., 35 Conn. 310 ; Myer v. Liverpool, L. & G. Ins. Co., 40 Maryland, 595 ; Tup- per V. Cassell, 45 Mississippi, 352; United States V. Robertson, 5 Peters, 641. a Lamb v. Stone, 11 Pick. 527. Tiiis was an action on the case by a creditor against a person to whom it was alleged tlie 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, tlie prop- erty was liable to attachment, after, as well as before, the sale ; and 2. If the property could not be come at to be at- tached specifically, it might be reached in the purchaser's hands by garnishment. See United States v. Vaughan, 8 Binney, 894. CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. § 460 « the defendant had satisfied the judgment.^ And where, by law, the death of a defendant and a decree by the probate court of the insolvency of his estate, had the effect of dissolving an attachment levied on his property, it was held, that the lien ac- quired 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 discharge 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 payment 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.* And the judgment against the de- fendant must be a final one. If appealed from by the defend- ant, 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 garnishee must fall with it, and be likewise reversed.^ § 460 a. In most 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- 1 Thompson U.Wallace, .3 Alabama, 307; Proseus y. Mason, 12 Louisiana, 16; 132 ; Price v. Iliggins, 1 Littel, 274 ; Housemans v. Heilbron, 23 Georgia, 186 Hammett v. Morris, 55 Georgia, 644. Rose v. Whaley, 14 Louisiana Annual,; 2 McEachin v. Reiil, 40 Alabama, 410. 374 ; Collins v. Friend, 21 Ibid. 7 ; Rob- 3 Ante, § 411; Mitchell v. Watson, erts u. Barry, 42 Mississippi, 260; Met- 9 Florida, 160. calf v. Steele, Ibid. 511 ; Kellogg v. Free- 4 Gaines v. Beirne, 3 Alabama, 114 ; man, 50 Ibid. 127 ; Erwin v. Heath, Ibid. Leigh V. Smith, 5 Ibid. 583 ; Lowry v. 795 ; Washburn v. N. Y. & V. M. Co., 41 Clements, Ibid. 422 ; Bostwick v. Beach, Vermont, 50. 18 Ibid. 80; Case v. Moore, 21 Ibid. 758 ; s Emanuel v. Smith, 38 Georgia, 602. Caldwell v. Townsend, 5 Martin, n. s. ^ Kowlett v. Lane, 43 Texas, 274. [375] § 462 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. nishee in respect of that debt. If the phiintiff 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.i § 461. In order to a recovery against a garnishee, it must be sTioum affirmatively^ either by his answer or by evidence aliunde^ that he has property of the defendant in his possession, of a de- scription 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 would 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 misconception, and finally settled the rule that the garnishee's liability should be affirmatively shown. ^ § 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 1 Peck V. Stratton, 118 Mass. 406. Pacific Railroad, 21 Missouri, .30 ; Karnes 2 Webster v. Gage, 2 Mass. 503. v. Pritchard, 36 Ibid. 135; Lane v. Felt, 3 Porter v. Stevens, 9 Cusliing, 530. 7 Gray, 491 ; DriscoU v. Hoyt, 11 Ibid. See Lomerson v. Huffman, 1 Dutcber, 404; Richards v. Stephenson, 99 Mass. 625; Williams v. Housel, 2 Iowa, 154; 311; Caldwell u. Coates, 78 Penn. State, Farwell v. Howard, 26 Ibid. 381 ; Hunt 312. V. Coon, 9 Indiana, 537 ; Reagan v. [376] CHAP. XVni.] GAKNISHMENT. — GENERAL VIEWS. § 463 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 everj' 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 in 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 charged as his garnishee. The addition of the word "money," or " chattels," or "property," or " rights," which is frequently found, or that of 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 Maine, where, 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 per- son having in his possession money, goods, chattels, rights, or credits " of the defendant, may be charged as garnishee.^ And where this possession exists, the possessor cannot escape the operation of the garnishment on the ground that the property 1 Maine F. & M. Ins. Co. v. "Weeks, 7 v. Piper, Ibid. 439; Greenleaf v. Perrin, Mass. 488; White v. Jenkins, 16 Ibid. 62 ; 8 Ibid. 273; Paul ;;. Paul, 10 Ibid. 117 ; Brigden v. Gill, Ibid. 522; Rundlet v. Getcliell i'. Cliase, ?>7 Ibid. 106 ; Ilutchins Jordan, 3 Maine, 47. v. Hawley, 9 Vermont, 295; Iloyt v. 2 Haven v. Wentwortb, 2 New Hamp. Swift, 13 Ibid. 129. 93; Adams v. Barrett, Ibid. 374; Piper [377] 5 464 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. for Avlneli it is sought to charge him might have been attached by levy.i § 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 un- der attachment or execution, because not removable Avithout material injury to it, — as hides in the process of tainiing, — 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.* So, a person indebted to two jointly, either on implied assumpsit,^ or by note,^ may be charged as garnishee of one of his creditors, though that one could not maintain an action against him without joining his co-creditor. So where the garnishee is, when sum- moned, a debtor of the defendant, but the debt is payable at a future time ; though the defendant, at the time of the garnish- ment, can maintain no action against the garnishee, yet the latter 1 Brown v. Davis, 18 Vermont, 211. 2 Ante, § 458. 3 Clark V. Brown, 14 Mass. 271. * Staples V. Staples, 4 Maine, 5.32; Wooflbriflge v. Morse, 5 New Hamp. 519; Thayer v. Sherman, 12 Mass. 441 ; Riley V. Hirst, 2 Penn. State, 346; Mann v. Buford, 3 Alabama, 312. In Corey i'. Powers, 18 Vermont, 588, Williams, C. J., said : " It is objected that no action could have been maintained by the debtor against the trustee, without a previous demand, and that because no such de- mand was found in the case, tlie trustee should not have been held chargeable. It is not necessary, to constitute this relation of debtor and trustee, that a right of action should actually exist and be perfected in the debtor, at the com- mencement of the trustee process. It is sufficient, if property is deposited with the trustee, or that he is indebted to the principal debtor, though something fur- [378] thcr may be requisite, to constitute a right of action therefor." In Quigg v. Kittredge, 18 New Hamp. 137, the court said : " Actions cannot be maintained by the party entitled, against attorneys, sheriffs, agents, &c., who have moneys in their hands, collected, until a demand has been made. So, bailees are not an- swerable, in many cases, until there has been a demand. So, administrators of insolvent estates cannot be charged until demand, after a dividend has been de- clared, nor administrators generally, for the share of an heir. But they may be charged as trustees, although there has been no demand. The reason is, that the process of foreign attachment is not regarded as an adverse suit, as against the trustee. Instead of being subjected to costs, he recovers costs, and these are regarded as an indemnity." s Wiiitney v. Munroe, 19 Maine, 42. 6 Miller 11. Richardson, 1 Missouri, 310. CHAP. XVIII.] GARNISHMENT. — GENERAL VIEWS. 465 may be charged. Thus, where a savings bank was garnished, and at the time had money of the defendant on deposit, which, by the terms of its charter, conld be withdrawn by him only at certain designated times, and after a week's notice, and upon the production of his pass-book, or satisfactory evidence of its loss ; none of which requirements had been met by the defendant be- fore the garnishment took place, and therefore he then had no cause of action against the bank ; it was held, that the bank was, nevertheless, chargeable as garnishee.^ § 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- ance is void, and the lands are liable to their executions, without 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 1 Nichols V. Scofield, 2 Rhode Island, erance, 6 Ibid. 474 ; Gore v. Clisby, 8 123. See Clapp v. Hancock Bank, 1 Ibid. 555 ; Bissell w. Strong, 9 Ibid. 562. Allen, 304. See Seymour v. Kramer, 5 Iowa, 285. ■^ Moor V. Towle, 38 Maine, 133 ; Sted- * Kisley v. Welles, 5 Conn. 431. man v. Vickery, 42 Ibid. 132; Plummer ^^ Wright v. Bosworth, 7 New Hamp. V. Ilundlett, Ibid. 305. 590. 8 How V. Field, 5 Mass. 390; Dickin- « Baxter v. Currier, 13 Vermont, 615. son V. Strong, 4 Pick. 57 ; Ripley v. Sev- [379] § 465 GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. lands from liim, and thus lie would in effect be charged with the value without any consideration." ^ • So, where an insolvent debtor had assigned personal and real propei't}'^ 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, by 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 an}'- 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, may discharge himself by exposing the goods and effects of the principal to the ofiicer 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 in the contemplation of the legislature, as a subject of the pro- cess. It requires the sheriff, for want of goods, chattels, or lajids 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 1 How V. Field, 5 Mass. 390. In credits, although the principal defendant Hunter v. Case, 20 Vermont, 195, it was could not maintain an action therefor attempted to sul)ject a garnishee to lia- against him. Bennett, J., in deUvering 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. The statutory provision be brought within the statute, unless bearing on the case was, that, if the per- indeed, within the term effects. Certainly son summoned as trustee should have in it is not goods or credits. It is not within his possession any goods, effects, or credits the popular meaning of the term effects. of the principal defendant, which he That word, as ordinarily used, is under- holds by a conveyance, or title, that is stood to mean goods, movables, personal void as to the creditors of the principal estate ; and I am not aware that the word defendant, he may be adjudged trustee effects has ever been defined by any legal on account of such goods, effects, or writer as including real estate." [380] CHAP. XVITL] garnishment. — GENERAL VIEWS. § 465 « discovered and exposed, to take the body of the principal, &c. Now land conveyed to the assignee by a bond fide deed cannot be considered as in the hands or possession of the principal, nor can it be considered as goods, effects, or credits in the hands of the trustee." i 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 hond 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 hable by one creditor for the valup 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.^ § 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 persoyis ; 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." ^ 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 1 Gore V. Clisby, 8 Pick. 655 ; Chap- 2 Post, § 648. man v. Williams, 13 Gray, •416. ^ Ante, § 1. [381] § 465 h GARNISHMENT. — GENERAL VIEWS. [CHAP. XVIII. 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 mone}^ under his immediate supervision and control. Still, iu 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. ^ The same question came up in Pennsylvania, in the case of a ticket agent of a railroad company, employed at the company's office to sell tickets to passengers ; and the court held, that he could not be garnished. " The purpose of an at- tachment," 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 of- fices of the company ; and of these we speak. These are the very hands of the company ; it cannot do its business without them ; and if an attachment is to be regarded as arresting money re- ceived 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.'^ Much less can one of several defendants be summoned as garnishee of the others.* § 465 h. To the doctrine stated in the next preceding section an exception was established in Alabama, where, under a judg- 1 Central Plank-Road Co. v. Sam- ^ Pettingill v. Androscoggin R. R. Co., mons, 27 Alabama, 380. Subsequently, 51 Maine, 370; Sprague v. Steam Nav. in that State, it was held, that a county Co, 52 Ibid. 592; Rowker v. Hill, 60 treasurer could not be charged as gar- Ibid 172. Sed contra, Ballston Spa Bank nisliee of the county; but this decision v. Marine Bank, 18 Wisconsin, 4y0 ; rested mainly on peculiar statutory pro- Everdell v. Sheboygan, &c. R. K. Co., 41 visions, not generally found in other Ibid. 395 ; ilrst Nat. Bank v. Davenport States. Edmonson v. DeKalb County, & St. P. R. R. Co., 45 Iowa, 120. 51 Alabama, 103. * Bailey v. Lacey, 27 Louisiana An- '-^ Fowler v. Pittsburg, F. W. & C. R. nual, 39 ; Richardson v. Lacey, Ibid. 62. R. Co., 35 Penn. State, 22. [382] CHAP. XYIII.] GARNISHMENT. — GENERAL VIEWS. 467 raent 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 adminis- trators for a debt due by the testator or intestate to the de- fendant. It was held, that A. in his representative capacity might be charged as his own garnishee, but that the judg- ment should be satisfied out of the assets of the estate in his hands. ^ § 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 liabiUty as a debtor of the de- fendant. § 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. 1 Dudley v. Falkner, 4'J Alabama, 148. [383] § 467 GARNISHMENT. — GENERAL VIEWS. [CHAP, XVIII. 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 propertj^ 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. [384] CHAP. XIX.] WHO MAY BE GARNISHED. § 469 CHAPTER XIX. WHO MAY 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 attacliment 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, prima 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 w^as held — as 1 Knox V. Protection Ins. Co., 9 Conn, diction of the court over the parties or 430. controversy. The Code, ch. 151, § 2, 2 Wales V. Muscatine, 4 Iowa, 302 ; authorizes the plaintiff" in an action at Taylor v. Burlington & Mo. R. 11. Co., 5 law, on proper affidavit, to obtain an at- Ibid. 114. tachment. The 7th section provides that 3 Boyd V. Chesapeake & Ohio Canal every such attachment may be levied on Co., 17 Maryland, 195. any estate, real or personal, of the de- 4 Baltimore & Ohio R. R. Co. v. Gal- fendant; and that it shall be sufficiently lahue, 12 Grattan, 655. The court said : levied by the service of a copy thereof " The next error assigned is, that the on such persons as may be in possession court erred in overruling the motion to of effects of, or known to be indebted to, discharge the attachment ; the plaintiff tlie defendant. By the 9th section, such in error insisting that a corporation is persons are to be summoned to appear not liable as a garnishee, under the at- as garnisliees. The 12th section gives a tachment laws. The objection is gen- lien from the time of service, upon the eral, applicable to all corporations ag- personal property, choses in action, and gregate, without reference to the juris- other securities of the defendant, in the 25 [385] §470 WHO MAY BE GAENISHED. [chap. XIX. 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 tachment on a corporation as a hands of, or due from, any such gar- nishee. The 17th section provides tiiat when any garnishee appears lie siiall be examined on oatli. If it appear on such examination that he was indebted, the court may order liim to pay the amount so due by him ; or with the leave of the court he may give bond to pay the amount due by him at such time and place as the court may thereafter direct. The 18th section authorizes the court, if he fails to appear, to compel him to ajipear, or the court may hear proof of any debt due by him to the defendant, and make the proper order thereupon. And the 19th section authorizes a jury to be im- panelled when it is suggested that the garnishee has not fully disclosed the debts due by him to, or effects in his hands of, the defendant; and provides for a judgment on the finding of the jury. " From this review of the material provisions of the statute bearing upon this question, there would seem to be nothing in the condition of a corporation to exempt it from being summoned as a garnishee. When the word person is used in a statute, corporations as well as natural persons are included for civil purposes. This was the rule at common law. They are to be deemed and taken as persons, when the circumstances in •which they are placed are identical with those of natural persons expressly in- cluded in such statutes. And the Code provides that the word person may ex- tend and be applied to bodies politic and corporate as well as individuals. The general words as to what effects, debts, or estate of tlie defendant may be at- tached, would seem to embrace his whole estate, without respect to the character of the person, natural or artificial, in whose hands the effects were, or by whom the debt was due. The corpora- tion stands in precisely tiie same posi- tion, in regard to such effects or debts, [886] statutory mode of serving an at- garnishee, a service in a mode as a natural person. If it owes the debt or holds the effects of another, it, like an individual, is liable to be sued by its creditor or the owner of the property; and the statute merely substitutes the plaintiff in the attachment to the rights of the creditor or owner as against the garnishee. No change is made in its contract, or additional obligation imposed on it, by being proceeded against as gar- nishee. The only particular in which there is any departure from a literal compliance with the statute, is in regard to that provision of the 17tli section which declares that when any garnishee shall appear, he shall be examined on oath. This clause was for the benefit of the plaintiff in the attachment. In the case of a corporation, he nmst receive an answer in the only mode in which the corporation can answer, under its corpo- rate seal. In chancery, where, as a gen- eral rule, all answers must be verified by oatii or affirmation, a corporation must answer in the same way, though where a discovery is wanted, a practice has pre- vailed of making some of the officers de- fendants. The same result could be arrived at under the attachment law, by examining the officers as witnesses, if the plaintiff suggests that a full disclosure has not been made. This is an incon- venience to which he is subjected, grow- ing out of the character of the garnishee, but furnishes no reason for exempting the corporation from being so proceeded against, when all the other words of the statute are sufficiently comprehensive to embrace artificial as well as natural per- sons. The mischief intended to be rem- edied applies as well to debts due by them as by individuals ; and the circum- stances in which tiiey are placed are the same as those of others embraced in the statute. A fair construction of the stat- ute authorizes the proceeding against the corporation in a proper case." CHAP. XIX.] WHO MAY BE GARNISHED. § 471 authorized and requested by the president and directors of the corporation will be binding on it. It was so held, 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, Re- corder, and Treasurer of a city, informing them and each of them that they " were attached and held as garnishees of the defend- ant, and as persons holding property of said defendant; " it was decided to be no service on the corporation.^ So, where the sum- mons of garnishment was served on the agent of a foreign corpo- ration, 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 insuffi- cient 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 defend- ant in his possession, " or with his agent ; " it was held, that the agent must be a managing agent ; and therefore that service upon the teller of a bank, whose sole duty was to receive and pay out moneys that came into and went out of the bank, was not a gar- nishment of the bank.^ And where the law 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 ful- filling the duties of president.^ And in Connecticut, it was de- cided 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.'^ § 471. Tlie rules governing the liability of a corporation as a garnishee, do not differ from those applicable to the case of an 1 Davidson v. Donovan, 4 Cranch C. ^ Daniels v. Meinhard, 53 Georgia, 359. C. 578. ^ Kennedy v. H. L. & S. Society, 38 ■•' Claflin V. Iowa City, 12 Iowa, 284; California, 151. Greer ;;. Kuwlcy, 1 I'ittsburgii, 1. *> Clark v. Chapman, 45 Georgia, 486. ' Varneil v. JSpeer, 55 Georgia, 132. ■* Raymond v. Rockland Co., 40 Coon. 401. [387] § 474 WHO MAY BE GARNISHED. [CHAP. XIX. 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 fulfilled by the mere fact of the defendant being a stock- holder in tlie corporation ; and the corporation cannot be charged as his garnishee on that account.^ § 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 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 authority of the directors. It was therefore held, that an answer of a corpoiation put in by its cashier, or the individual answer under oath of either a president or cashier, is not suffi- cient.^ 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 1 Planters & Merchants' Bank v. * Oliver v. C. & A. R. R. Co., 17 lUi- Leavens, 4 Alabama, 753 ; Ross v. Ross, nois, 587. 25 Georgia, 297. 5 Head v. Merrill, 34 Maine, 586. 2 Callahan v. Hallowell, 2 Bay, 8 ; ''1 Saunders's II. 67, Note a ; Tamm Baltimore &. O. R. R. Co. v. Gallahue, 12 v. Williams, 2 Chitty, 438; 3 Douglass, Grattan, 655. 281 ; Crosby v. Hetlierington, 4 Manning ^ Branch Bank v. Poe, 1 Alabama, & Granger, 933 ; Day v. Paupierre, 7 396; Planters & Merchants' Bank v. Dowliiig & Lowndes, 12 ; 13 Adolphus & Leavens, 4 Ibid. 753. Ellis, n. s. 802. [388] CHAP. XIX.] TTHO MAY BE GARNISHED. §474 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 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 in 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. 2 The same ground has been taken in Maine, New Hampshire, Vermont, Connecticut, New York, and the District of Columbia.^ 1 Tingley v. Bateman, 10 Mass. 343 ; reference to tliis action. The indebteJ- Nye V. Liscomb, 21 Pick. 263. See ness attempted to be reached is between Wheat V. P. C. & F. D. R. R., 4 Kansas, parties resident in otlier jurisdictions, 370. who have never been domiciled within 2 Ray V. Underwood, 3 Pick. 302 ; Hart this State, payable, and to be discharged V. Anthony, 15 Ibid. 44-5. in the foreign jurisdiction. But it is well 3 Lovejoy v. Albree, 33 Maine, 414 ; settled that a chose in action is not Jones V. Winchester, 6 New Hamp. 497 ; reached by the trustee process, under Lawrence ';. Smith, 4-5 Ibid. 533; Sawyer circumstances like the present. It is V. Thompson, 4 Foster, 510; Baxter v. regarded as having a situs and locality Vincent, 6 Vermont, G14 ; Green v. Far- where the party resides. The payment mers & Citizens' Bank, 25 Conn. 452; cannot be enforced within this jurisdic- Bates V. New Orleans, &c., R. R. Co., 4 tion, by this process, of a debt due from Abbott Pract. 72 ; Willot v. Equitable a debtor residing in anotlier State, and Ins. Co., 10 Ibid. 193; Miller v. Hooe, payable in that jurisdiction. A chose in 2 Cranch, C. C. 022. In Sawyer v. action, in reference to the foreign process, Tliompson, the grounds taken by the stands precisely upon the same ground as Superior Court of New Hampshire were chattels of tlie principal debtor, found in as follows : " The present is an attempt the possession of tiie trustee, located and to charge the trustee for a chose in action, deliverable to him in another State. The which is in the law regarded as local in trustee is no more answerable for the [389] §475 WHO MAY BE GARNISHED. [chap. XIX. § 475. This doctrine, however, .as previously intimated, does not apjily, 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 dehver goods to the defendant at some particular place in that State. In regard to this condition of things, the Superior Court of New Hampshire said : " Tlie 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 ; cluise in action, payable in the foreign jurisiliction, than for the goods that are located there. No lien is created by the service of the process upon either. Both classes of property are equally local. To compel a performance of the contract in reference to either class of property, in a jurisdiction different from that of the stipulated performance, would be to allow a creditor of the principal debtor to en- force a contract in a manner different from its legal effect and from the agree- ment of the parties." In Vermont, in Baxter v. Vincent, iit supra, the matter arose in such a shape as to involve the construction of three statutes, passed in 1797, 1817, and 1830, the last two of which seemed to require the garnishee to be a resident of the State, while the first did not. The following portions of the opin- ion of the court discuss other points than those embraced in the cases cited from Massachusetts and New Hampshire. The court say : " It should be borne in mind, that the proceeding against the trustee is not an original or distinct action. The direct suit is between the creditor and principal debtor, and this is but a species of attachment, incidental to that suit, and dependent upon it. And hence the gen- eral rule, that any person coming into this State is allowed to institute, or may be holden to defend, a transitory personal action, is not conclusive of the question. The object of these statutes is to furnish a remedy against the funds and effects of the debtor, when in consequence of his having concealed himself, or being be- yond the reach of ordinary process, the usual remedies cannot be enforced against liim personally. And the course pointed out, to bind the effects for the benefit of the creditor, has been considered as some- [390] what analogous to proceedings in rem, while in the mode of trial it has been likened to a hearing in chancery. A judg- ment in relation to the effects, whether it be for or against the trustee, is not un- derstood to have the effect of an adjudi- cation as between him and the principal debtor. If the tru tee is made liable as such, he is protected against the principal debtor, only to the amount for which he is so charged in favor of the crey them to the Nahant Bank ; and that in either view the Suffolk Bank was not charge- able. Wildes V. Nahant Bank, 20 Pick. 352. 3 Morrill v. Brown, 15 Pick. 173; Lovejoy v. Lee, 35 Vermont, 430. [397] § 481 WHAT PROPERTY WILL CHARGE GARNISHEE. [CHAP. XX. beef, described as being under Boylston Market, such contract was held to be a mere chose In action, and not attachable in the garnishee's hands. ^ So, where persons to whom the defendant had made an assignment, for the benefit of creditors, of goods and merchandise, book debts, promissory notes, and other choses 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 choses 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, where A. caused goods to be insured against loss by fire, and the policy provided that, in case of a loss, payment should be made to B., who held a mortgage on the goods. The goods were de- stroyed by fire, and immediately after, and before the loss had been proved according to the provisions of the policy, B. was garnished. Afterwards B. received the amount of the loss, retained what was due him, and paid the balance on A.'s order to a third person. It was decided that the right to collect the money accruing under the policy was a mere chose in action, and that B. was not liable.* 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 garnishee on that account.^ So, a note deposited in one's hands, and not collected, will not sub- ject him as garnishee, even though a judgment has been recov- ered on it in his name.^ So, where a person holds real estate upon a promise to sell it and pay over the proceeds, and he sells it, and takes notes for the purchase-money, he cannot be held as garnishee, in respect of the notes.'' So, where one had con- tracted to deliver to another, at a certain time, a note of a third person, for a given amount, and before the time of delivery he 1 Andrews v. Ludlow, 5 Pick. 28. 5 Hitchcock v. Egerton, 8 Vermont, 2 Lupton V. Cutter, 8 Pick. 298 ; Gore 202 ; Fitch v. Waite, 5 Conn. 117 V. Clisby, 8 Ibid. 655; Copeland v. Weld, *> Kundlet v. Jordan, 3 Maine, 47. 8 Maine, 411. 7 Guild v. Holbrook, 11 Pick. lOL 3 Hopkins v. Ray, 1 Metcalf, 79. * Meacham v. McCorbitt, 2 Metcalf, 352, [398] CHAP. XX.] WHAT PROPERTY "WILL CHARGE GARNISHEE. § 481 was garnished, it was held, that he could not be charged.^ 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 New Hamp. I. F. Co. v. Piatt, 5 New Hancock v. Colyer, 99 Mass. 187 ; Knight Hamp. 193. v. Bowley, 117 Ibid. 551. 2 Lane v. Felt, 7 Gray, 491. See [399] §482 WHAT POSSESSION [chap. XXI. 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 1 Andrews v. Ludlow, 5 Pick. 28 ; Burrell v. Letson, 1 Strobhart, 239. Tlie peculiar language of the Trustee Act of Massaciiusetts — by the terms of wliich the liability of the garnishee is based on his having " goods, effects, or credits of the principal defendant intrusted or depos- ited in his hands or possession " received a construction by the Supreme Court of that State, in Staniels v. Raymond, 4 Gushing, 314. The garnisliee had in his possession, when summoned, a cow of the defendant's, for the purcliasc of which he had been in treaty with the defendant. No bargain had been completed, and before the time of trying the cow had expired, and before the garnishment, the garnishee had notified the defendant tiiat he should not purcliase the cow, and had delivered her to him, but the defendant left her in his possession, where she was at the time the garnisliee was summoned. The court held, that this was not such a possession of the cow as would render the garnishee liable, and said : " The cow had not been taken away, and the ques- tion is, wliether tlie mere possession of the cow, witiiout any claim of rigiit, by the supposed trustee, renders him charge- [400] able ; and in the opinion of the court it does not. It may well be doubted, whether the trustee is chargeable accord- ing to the literal construction of the statute. The words 'intrusted or de- posited' imply, in their ordinary signifi- cation, something more than mere pos- session ; but if it were otherwise, such a construction would be unreasonable and inadmissible ; for thereby an innkeeper would be chargeable for the property of a traveller, which he might have in his possession for the shortest time ; and the Inrer of a horse for a ride, might be charged as trustee. . . . We think it never could have been the intention of the legislature, that the mere possession of i)roperty, by a party having no claim to hold it against the owner, should ren- der him liable therefor as trustee, and tliereby to be subjected to trouble and ex[)ense in answering to a claim in which he has no interest. Such a construction of the statute would be prejudicial in very many cases, and cannot be ad- mitted ; nor do we think that a literal construction of the statute would render the supposed trustee chargeable." CHAP. XXI.] WILL CHAEGE GAENISHEE. § 484 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.3 So, where goods were consigned by merchants in Philadelphia 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 jjroperty.^ § 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 Pennsjdvania 1 Lane v. Nowell, 15 Maine, 86 ; Morse clearly the point stated in tlie text, but V. Holt, l!2 Ibid. 180. See § 484. in Andrews i'. Ludlow, 5 Pick. 28, it is '^ Bingham v. Lamping, 26 Penn. stated by Wilde, J., to have been de- State, y40. cided on that ground. 3 Willard v. Sheafe, 4 Mass. 235. ^ Andrews v. Ludlow, 6 Pick. 28; This case does not, in itself, appear to Nickerson v. Chase, 122 Mass. 296. have been deciik'd on this ground, but in •• Ward v. Lamson, 6 Pick. 358. The Andrews v. Ludlow, 5 Pick. 28, it is so question of actual and constructive pos- stated by Wilde, J. session does not seem to have been be- * Grant v. Shaw, 16 Mass. 341. The fore the court in this case, report of this case does not indicate 26 [401] § 486 WHAT POSSESSION [CHAP. XXI. was, by his agent in Ohio, in possession of goods of the defend- ant, he was charged as garnishee of tlie defendant under an attachment taken out in Pennsylvania.^ § 485. 11. Possession considered with rt^erence 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, privity between him and the defendant, both of contract, express or implied, and of interest, by which the defendant would have a right of action, or an equitable claim, 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 gar- nishee's being charged. Property may be in the garnishee's hands, in which the defendant has an interest, but which the garnishee may be under no legal obligation to deliver to him ; and as the plaintiff can exercise no greater control over the prop- erty in such case than the defendant could, 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 trespass, 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. 1 Childs V. r»igljy, 24 Penn. State, 23. 3 Despatch Line v. Bellamy Man. Co., See Glenn v. Boston & Sandwich Glass 12 New Hamp. 205. See Everett v. Co., 7 Maryland, 287. Herrin, 48 Maine, 537. '^ Cushing's Trustee Process, § 101 ; Post, § 490; Skowhegan Bank v. Parrar, 46 Maine, 293. [402] CHAP. XXI.] WILL CHARGE GARNISHEE. § 487 § 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, /rs^, he was under no legal obligation to C, the cestui que trusty and C. could maintain no action against him ; and, second, 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 tlie purpose of paying off a mortgage resting upon the land of C. A. was summoned as garnishee of C, and was discharged, because tlie 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- 1 White V. Jenkins, 16 Mass. 62. 3 Penniman v. Ruggles, 6 New Ilanip. 2 Brigden ;;. Gill, 16 Mass. 522. See 166. Hinckley v. Williams, 1 Cusliing, 4'JO; * Wright y. Foord, 5 New Ilanip. 178. Mcllvaine v. Lauciisler, 42 Missouri, 'J6. [403] §488 "WHAT POSSESSION [chap. XXI. 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 hmd, under the expectation that the land would, by devise, come to him at the death of his father, and the father was summoned as garnishee of tlie 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, that B. could not be charged as garnishee of C, because there was no privit}'^ 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 he 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.* 1 Post, § 514; Neuer v. O'Fallon, 18 Missouri, 277. See Briggs v. Block, Ibid. 281 ; Barnard v. Graves, 16 rick. 41 ; Huntley v. Stone, 4 Wisconsin, 91 ; Eichelberger v. Murdock, 10 Maryland, 373 ; Towne v. Griffltli, 17 New Hamp. 165; Burnliam v. Beal, 14 Allen, 217; Kelly V. Roberts, 40 New York, 432; Kelly V. Babcock, 49 Ibid. 318. 2 Wells V. Banister, 4 Mass. 514 ; Bean v. Bean, 33 New Ilamp. 279. But where tlie property in the garnishee's hands is in the name of one as a trustee, holding it merely for the use of the de- fendant, this presents no obstacle to holding it by garnisliment, because the beneficial interest is in the defendant, accompanied witli a present right of pos- session and enjoyment. Kaynes v. Lowell I. B. Society, 4 ('ushing, 343. 3 Field V. Crawford, 6 Gray, 116. * Folsom V. Haskell, 11 Gushing, 470. By Shaw, C. J. : "The question in this case is, whether a party to whom a chose [4U4] in action has been assigned, so that, prima facie, he could maintain an action thereon in the name of tlie assignor, is put in such a relation to the debtor tliat the latter can be suumioned as his trustee. The tendency of our laws is to exempt the person, but the more effectually to charge the property of the debtor; yet as this is the first attempt to charge a trustee under such circum- stances, althougii our statutes regulating the trustee process have been in force for seventy years, it becomes tlie court to look carefully at the case. " It is conceded that an action would lie against the alleged trustee for this money in the name of the assignor. We are of opinion that this is not enough ; but that in order to charge the trustee lie must be directly liable to the defend- ant. The assignee of a chuse in action is made the attorney of tlie creditor to col- lect the debt and hold the proceeds to his own use. The debtor lias nothing to CHAP. XXI.] WILL CHARGE GARNISHEE. § 489 § 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 w^as, that he should pay the defendant a certain sura, part of which only was the defendant's property, and the rest for the benefit of other persons ; the court held that the garnishee should not be charged for that part of the bond which was due to the other persons, and, in delivering their opinion, say : " The bond is made to the defendant, and he had a right to demand payment of it, and to sue it ; but still, as it appears that in taking the bond he acted as the trustee of others, it being given for the consideration of the purchase of an estate, the life interest in which was in his mother, and the reversionary interest in his brothers and sisters and their children, the money secured by the do with the relation between the assignor creditors. But there is no relation, no and his assignee. How can he know or privity, between him and the assignee try, in this form of proceeding, the ques- of his creditor. If the trustee had tion whether the assignment was duly promised to pay the debt to the assignee, executed, or whether if executed it has the case would be different, for tiie latter been discharged or revoked, or whether would then be the legal creditor." other persons have obtained rights by i Simpson v. Harry, 1 Devereux & other valid assignments'* The whole Battle, 202. See Miller v. Richardson, theory of the trustee process is, that the 1 Missouri, 310 ; Jones v. iEtna Ins. Co., trustee is a stranger to the suit and his 14 Conn. 501 ; Pickering v. Wendell, 20 liability is to bo decided on his own an- New Hamp. 222 ; Chapin v. Conn. R. R. swers, and on facts within his own knowl- Co., 16 Gray, 69; Halpin v. Barringer, edge ; and the reason is, that he knows 26 Louisiana Annual, 170. the relation between him.self and his [405] § 489 WHAT POSSESSION [CHAP. XXI. bond ought in equity to be distributed among the devisees of the estate in the proportions in which they held the estate." ^ So, in the case previously referred to, where A. had given a bond to B., by whicli he bound himself to pay B. a certain yearly sum, to be appropriated to the support of C, and A. was summoned as garnishee of B. ; he could not be charged, because the money due on the bond was not his 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.^ So, where goods were shipped on a vessel, and freight was earned for the transportation thereof, and the shipper was sum- moned as garnishee of the master of the vessel, and it appeared that the owners of the vessel were not indebted to the master ; the garnishee was held not chargeable, and the court based its decision on the following grounds: "The agreement of the mas- ter operated to make or create a contract between the owners and the freighters, as well as between the master and the freight- ers. The master is the mere agent of the owners, removable at pleasure. He contracts on the personal responsibility of the owners, and has no remedy for his wages, as mariners have, against the ship. But, inasmuch as he may hypothecate the ship, and the freight, and the cargo, for necessaries in a foreign port, it has been held in Massachusetts and New York, contrary to the English decisions, that he has a lien upon the freight for neces- sary disbursements and expenses. And the able judge of the United States Court of this district, has extended the claim also to his wages. But with the question, for what matters or claims the master may have a lien on the freight, we have, in the case at bar, no concern ; for the master has been fully paid by the own- ers. They may, therefore, compel the payment of freight to themselves. The master, under these circumstances, has no more right to the freight-money than he has to the ship. Both belong to the owners." * 1 Willard v. Sturtevant, 7 Pick. 194. ^ Titcomb v. Seaver, 4 Maine, 542. 2 Brigflen v. Gill, 16 Mass. 522. * Ricliardson v. Wiiiting, 18 Pick. 530. [406] CHAP. XXI.] WILL CHARGE GARNISHEE. § 490 § 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 de- fendant ; 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, Tlie presentation of a few cases illus- trative 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 was held by a trustee for four cestuis que trust,, and their proportional shares have been adjusted on a bill in equity brought against him by three of them, he is chargeable as gar- nishee for the share of the fourth cestui que trustJ^ So, where property is placed in the hands of one, to be sold, and the pro- ceeds 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 pro- ceeds of the same, if sold, is liable as garnishee of the defendant, to the amount of tlie rents and profits in his hands.^ So, wliere a sum of money was bequeathed to trustees, 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, $1,000, and then arrested the principal in Matanzas, in a suit on a bond of indemnity, and upon receiving |2,000 gave this bond up to the principal. The bond to the United States 1 Estabrook v. Earle, 97 Mass. .302. 9 Iowa, 407 ; McLaughlin v. Svvann, 18 2 Haskell v. Haskell, 8 .Metcalf, 545. Howard, Sup. Ct. 217. 8 Pierson v. Welier, 3 Mass. 5G4 ; New ^ Russell v. Lewis, 15 Mass. 127. En{?Iand Mar. Ins. Co. v. Chamller, 16 ^ Matliews y. Park, 1 Pittsburgh, 22 ; Ibid. 275; Webb v. Peale, 7 Piek. 247 ; Park v. Mathews, 36 Penn. State, 28 ; 2 Kiciiards v. Allen, 8 Ibid. 405; Hearu v. Grant, 13G. Crutcher, 4 Yerger, 461 ; Cook v. Dillon, [407] § 490 WHAT POSSESSION [CHAP. XXI. 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.2 So, 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 re- quired 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, en- tered 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 re- cover back what he had paid of the purchase-money, and there- fore the guardian ^vas liable as garnishee.^ So, A. was building a vessel, and agreed with B., C, and D., that they should own three-sixteenths of the vessel, and should be allowed the amount of all reasonable bills which they might produce against the vessel, for all such materials as they should supply, until she was fit for sea ; and then that he would convey to them three-six- teenths of the vessel. B. supplied materials to such an amount as might entitle him to be an owner of one-sixteenth part of the vessel, but C. and D. did not furnish their proportions. The ves- sel was finished, and was chartered by A., on his own account, to another party. A. was summoned as garnishee of B. ; and it was decided, that, as B. was not entitled to any part of the ves- sel, and A. was accountable to him for the amount of supplies he 1 Watkins v. Otis, 2 Pick. 88. 3 Williams v. Reed, 5 Pick. 480. 2 Thompson v. Stewart, 3 Conn. 171. [408] CHAP. XXI.] WILL CHARGE GAENISHEE. § 491 furnished, he was chargeable as garnishee to that amount.^ So, where one contracts to purchase goods, on certain conditions, to be by him performed, and receives the goods into his possession, but fails to perform the conditions, the vendor of the goods has a right of action to recover the goods, and the vendee may there- fore be charged as his garnishee in respect thereof.^ 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 pur- chase-money.^ § 491. But it has been held, that it is not always 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 A., 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 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.* 1 Davis V. Marston, 5 Mass. 199. thus expressed : " The attachment is in 2 Emery v. Davis, 17 Maine, 252. rem, for the purpose of compelling the 3 Edson V. Trask, 22 Vermont, 18. appearance of the defendant ; and if he, * Jackson v. Bank U. S., 10 Tenn. instead of drawing this money out of the State, 61. The views of the court were bank, had appeared and cntereil bail to [409] § 401 a WHAT POSSESSION [chap. XXI. § 401 a. But where money is deposited in a bank by one as agent, and tlie account is understood both by the depositor and tlie action, tlie money would liave Leen free, and tlie bank iniij;ht then liave paid it to him. Hut the garnishee chose to he the sole judge and umpire, and to pay out the money to him on his checks, tlius in fact recofiuizintr his rijifht to the posses- sion and control of the money, and yet taking the hazard of defeating the object of the attachment. The first question that occurs is this : Could the bank, if the attachment had not been served, have resisted the claim of the defendant to the money he had deposited with them? They received it and the bills as his, entered them on their books as his, and were bound, in the absence of any attach- ment, to have paid the funds to him. How, then, were they placed in any bet- ter situation by the service of the attach- ment ? The attaching creditor stands in the place of the defendant. If the bank could not allege as against the defendant, that the funds were not his, neither can they allege against the attaching creditor that they are not the defendant's, and yet turn round and pay the money to the de- fendant, to enable him to defeat his cred- itor. In Sergeant on Attachment, p. 94, it is said that the garnishee may plead every thing to the scire facias which he could plead against the defendant; and if the bank could have pleaded against the defendant that the money and the prod- ucts of the bills were not his, why did they pay them to him after being warned by attachment? The law countenances not those operations by which its legit- imate force and effect may be evaded. Thus, in the case of Silverwood v. Bellas, 8 Watts, 420, it was resolved that Silver- wood, the garnishee, who had received money in trust to deliver it over to the defendant, was liable because he did de- liver it over. Here it cannot be gainsaid that the bank was bound to deliver over the money to the defendant in the absence of the attachment. " The ownership of the defendant is evidenced and maintained by the custom- ary evidence of right, that is, the deposit in the bank in his own name, the books of tlie bank, the drawing of bills and checks in his own name. Under these [410] circumstances it is against public policy that the bank should be jiermitted to allege that the books were false for the purpose of defeating the creditor, and yet true for the purpose of paying over the funds to the defendant. . . . We fear it would open too wide a door for the inflic- tion of fraud, if such practices were tol- erated. An individual, made out to be insolvent, may have $100,000, nay, twice that amount, in a bank, entered on its books in his own name, his checks ac- cepted and paid. What amount of credit may he not obtain upon this lure held out to the community ? If the cashier, and the party claiming the money, or any other persons, are permitted to prove that the entries are untrue, that the depositor has not a cent in the bank, the injury may be deep and grievous to credit, and the source of severe loss to those who have put faith in the integrity and uprightness of banking institutions. . . . The gar- nishee after having paid the money to the defendant, and by its own books, papers, and records, given the evidence that it was his, shall not be permitted to allege the contrary for the purpose of protecting itself in a wrongful act. The duty of the garnishee was, having received the money and bills as the money and bills of the defendant himself, to have retained tliera until liberated by due course of law. . . . Even suppose that the defendant got this money from many persons, and used it as his own, he became the debtor of those persons, and they lost their grip on the fund. And by mingling this fund with the products of the bills, domestic and foreign, and using the whole as his own, ad lihitum, and depositing it as such in the bank, this deposit in the bank, so made and evidenced, created a debt or duty from the bank to the defendant, and not any specific or distinct debt or duty to the parties whose money it is alleged it in fact was. The debt or duty was to the defendant in mass ; and by paying it to him in the face of an attachment and garnishment, the bank became liable to the plaintiff in attachment." See Pax- son V. Sanderson, 2 Philadelphia, 308. In Bank of Northern Liberties v. Jones, 42 CHAP. XXI.] WILL CHARGE GARNISHEE. § 491 a 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, 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 de- posit was made, that the money belonged to the cestui que trusts Penn. State, 536, the court said : " Not- 42 Penn. State, 536 ; Jones v. Bank of withstanding tlie disapprobation of a Northern Liberties, 44 Ibid. 253. learned judge [in Paxson v. Sanderson] ^ Jones v. Bank of Northern Liberties, we hold Jackson v. Bank of the United 44 Penn. State, 253; McCormac v. Han- States to be good law, and it is not our cock, 2 Ibid. 310. intention to disturb it." ^ Farmers & Mechanics' Nat. Bank v. 1 Bank of Northern Liberties v. Jones, King, 57 Penn. State, 202. 4 Randall v. Way, 111 Mass. 506. [411] S -493 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. I 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 Law, 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, ex- ecutors, 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 principle was es- tablished, that a public officer who has money in his hands, to satisfy a demand which one has upon him merely as a public offi- cer, 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 in Connecticut. There the State's attorney com- menced a suit in the name of the county treasurer, on a forfeited bail-bond, taken in a criminal proceeding ; and during the pendency of the suit, the legislature, on the application of tlie 1 Chealy v. Brewer, 7 Mass. 259. See Bulkley v. Eckert, 3 Penn. State, 368 ; Clark V. Clark, 62 Maine, 255. [412] CHAP. XXIL] holds DEFENDANT'S PKOPERTY. § 496 person suffering by the offence complained of, directed the money which should be recovered on such bond to be paid over to him. The attorney afterwards received the money due on the bond ; and while it was in his hands, before any demand upon him, a creditor of the person to whom the legislature had directed the money to be paid caused the attorney to be garnished. It was held, that the attorney having received and held the money in his official capacity, as agent of the public, the garnishment was not sustainable.-^ § 494. The Supreme Court of Massachusetts took a step fur- ther, and announced the broader principle, that no person deriv- ing his authority from the law, and obliged to execute it according to the rules of law, can be chaiged as garnishee in respect of any money or property held by him in virtue of that authority.2 This decision was elicited by the garnishment of an administrator, and was based upon the principle stated, without reference to the statute under which the process issued. But this immunity extends only to the person himself, thus holding money or property in virtue of such authority. Therefore, one who had collected for A., executor of a deceased person, the amount of a promissory note made payable to A., as executor, was charged as garnishee in a suit against A. in his private ca- pacity .^ The Supreme Court of Illinois, in a case of garnishment of a treasurer of a school district, on account of money due to a teacher, stated the rule 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.* And so, where the school directors were garnished.^ § 495. Having stated the general rule, we proceed to examine its application to the various descriptions of persons holding money or property in an official or legal capacity. § 496. Administrators. In the case just cited, tlie garnishee an- swered that he had no goods, effects, or credits of the defendant 1 Stillman v. Isham, 11 Conn. 124. 3 Coburn v. Ansart, 3 Mass. 319. 2 Brooks V. Cook, 8 Mass. 246. See < Millison v. Fisk, 43 Illinois, 112. Colby V. Coates, 6 Cushiiig, 558; Thayer » Bivens v. Harper, 59 Illinois, 21. V. Tyler, 5 Allen, 94; Ladd v. Gale, 57 New llanip. 210. [413] § 496 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. in his possession, except as he was administrator of P. B., deceased; that previous to the death of the said P. B., the de- fendant had commenced a suit against P. B., to recover the value of certain hides, which suit was pending at the time of the gar- nishee'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 clearlj^ indebted to the defendant, and the administrator had money in his hands ready to pay the debt.^ And so in Rhode Island.^ 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.^ And in North Carolina an administrator cannot be required to answer, as garnishee, whether his intestate was indebted to the defendant.^ In Alabama, however, it seems to be conceded that an admin- istrator may be charged as garnishee in respect of a debt due from his intestate to the defendant,^ but not unless he is sum- moned in his representative capacity.^ In Mississippi, where the statute provides that " executors and administrators may be garnished for a debt due by 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.^*^ 1 Brooks V. Cook, 8 Mass. 246. ^ Terry v. Lindsay, 3 Stewart & Por- 2 Waite V. Osborne, 11 Maine, 185. ter, 317 ; Tillinghast v. Jolinson, 5 Ala- 3 Conway v. Armington, 11 Rhode bama, 514. But see Mock v. King, 15 Island, 116. Alabama, 66, cited post, § 498, for a dif- * Marvel V.Houston, 2 Harrington, 349. ferent view as to tlie garnishment of an 6 Parker v. Donnally, 4 West Vir- administrator on account of a distributive ginia, 648. share of a distributee. 6 Thorn v. Woodruff, 5 Arkansas, 55 ; ^ Tillinghast v. Johnson, 5 Alabama, Fowler v. McClelland, Ibid. 188. 514. T Welch V. Gurley, 2 Hay wf)od (N. C), i" Holman v. Fisher, 49 Mississippi, 334 ; Gee v. Warwick, Ibid. 354. 472. [414] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 498 § 497. In New Hampshire, in Delaware, and in Missouri, how- ever, while the principle announced in Massachusetts was recog- nized as sound, it was considered to be inapplicable, where the administrator had been, by the proper tribunal, adjudged and ordered to pay a certain sum to a creditor of the estate ; and in such case the administrator 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 Hamp- shire, and adopted by the Supreme Court of Missouri. In the language of the former, " an administrator, till he is personally liable to an action in consequence of his private promise, the set- tlement 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 defendant 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." ^ In Vermont, where an administrator had been decreed by the probate court to deliver property to a female distributee of the estate, and was afterwards summoned as garnishee of the husband of the distributee, the court admitted the general princix^le of the exemption of an administrator from garnishment; bat in view of the peculiar statute of that State, and of the fact that a decree of distribution had passed, charged the administrator as garnishee.^ § 498. In Alabama it was held, on the authority of the Massa- chusetts rule as previously stated,* that an administrator could not be charged as garnishee of one of the distributees of the es- tate, in respect of moneys in his hands as administrator.^ In 1 Adams v. Barrett, 2 New Hamp. ^ Adams v. Barrett, 2 New Ilamp. 374. 374; Fitchett v. Dolbee, 3 Harrington, ^ l^arks y. Cushman, 9 Vermont, o20. 267; Curling v. Hyde, 10 Missouri, 374; * Ante, § 494. Richards v. Griggs, IG Ibid. 41G. ^ Mock v. King, 15 Alabama, 66. [415] § 499 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. Peimsylvaiiia, under a statute which in terms authorized the gar- nishment of administrators, it was held, that a distributive share of personal 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 JMaine, 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.^ § 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 be- queathed 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 ^jay the amount to tlie legatee.^ i Bank of Chester v. Ralston, 7 Penn. tors, 4th Am. Ed. 478; Barnes v. Treat, State, 4b2; Hess v. Shorb, Ibid. 2bl ; 7 Mass. 271; Whichell y. Allen, 1 Conn. McCreary v. Topper, 10 Ibid. 4iy. In 385; Beckwith v. Baxter, 3 New Hamp. Hartle v. Long, 5 Penn. State, 491, an 07; Shevveil v. Keen, 2 Wharton, 332; administrator was garnished, when there Barnett v. Weaver, Ibid. 418; Picquet v. was no law autiiorizing sucii a proceed- Swan, 4 Mason, 443. In opposition to ing. Eleven years afterwards such a the doctrine staled in tlie text, the Su- law was enacted, and the plaintiff tlien preme Court of Indiana stands alune, in issued a scire facias to subject in the holding an executor chargeable as gar- hands of the administrator certain moneys nishee, in respect of an unascertained which had then, by the death of tlie distributive share of an heir of a dece- widow, become payable to the defendant ; dent. The statute under which this de- but the court held, that the law could cision was given provided that "the have no retrospective operation, and that lands, tenements, hereditaments, goods, as the moneys were not, before its pas- chattels, rights, credits, moneys, and sage, liable to the attachment, no pro- effects, of any and all persons not resi- ceedings based on the original attachment dents of this State, are and shall be could reach it. liable for the payment of debts and other ^ Davis V. Davis, 2 Cushing, 111. demands, by suit to be instituted by the 3 Commercial Bank v. Neally, 39 process of foreign attachment." Strat- Maine, 402. ton v. 11am, 8 Indiana, 84. 4 Priv. Bond. 2G7 ; Toller on Execu- ^ Eitchettr. Dolbee, 3 Harrington, 267. [41(3] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 499 The earliest American case on this subject, with which we are acquainted, came up in Massachusetts, 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 pa}' the plaintiff's claim out of his own estate. The Supreme Court, in reversing the judgment, use 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 garnishee. 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, under a statute providing that was objected, on tlie authority of Barnes "any debt or legacy due from an ex- v. Treat, that legacies could not be ecutor or administrator, and any goods, regarded as goods, effects, or credits, and effects, and credits in liis hands, as such, that therefore the legacy was not reached may be attached by trustee process," by the process ; but the court held, that, an executor was garnished in respect of as the statute authorized the attachment a pecuniary legacy bequeatlied to the of legacies, and yet made no change in defendant, and tlie writ was in the com- the form of the writ, it was equivalent mon form sunmioning the garnishee to to a legislative declaration that legacies ai)pear and sliow cause why execution should be regarded as included in one of should not issue against the defendant's those terms. Cummings v. Garvin, 65 " goods, effects, or credits " in his hands, Maine, 301. 27 [417] §499 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. 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 emi- nent counsel. The question presented was, in effect, the same as in the cases which arose in Massachusetts and Connecticut, and the court, in an elaborate opinion, decided that an executor could not be charged in respect of a legacy due to the defendant.^ » Winchell v. Allen, 1 Conn. 385. 2 Siiewell V. Keen, 2 Wharton, 332. The opinion of the court was in the fol- lowing terms : " In every case in which a determination has taken place on the question whether a foreign attachment would lie for a legacy, it has been held that it would not ; and some of these cases have occurred under statutory regulations on the subject, very similar to our own. Various reasons have been given for coming to this result ; and a little reflection convinces us that the proceedings by foreign attachment can- not be applied to the case of a legacy, without great inconvenience and mani- fest incongruity. " A pecuniary legacy is not a debt. It is a sum of money, payable by the executor or administrator out of the es- tate of the decedent, if sufficient assets remain in his hands, after discharging the debts of the deceased, and other re- sponsibilities, and provided the legatee previously complies with certain requi- sites prescribed by the acts of assembly. Generally it is not recoverable at law, but is subjected to chancery jurisdiction, which treats the executor as trustee of the estate for the benefit of those inter- ested in it. In Pennsylvania, a legacy is recoverable in a common-law court, by the act of 1772, there being no court of chancery ; but that act gives peculiar powers to the court ; and the executor's duty is still in nature of a trust, in rela- tion to legacies ; and they are payable only on the performance of certain con- ditions by the legatee. He must make a previous demand, and must tender or file a refunding bond, not so much for the protection of the executor, as for [418] the benefit of creditors who may subse- quently establish claims against the es- tate. If a foreign attachment be per- mitted, by which the assets in the hands of the executor are to be eventually ap- propriated to the attaching creditor, the legacy may be recoverable without de- mand, and without filing a refunding bond. For the legatee would not be ex- pected to give such bond, and there exists no power in the court to compel the attaching creditor to do it, or to au- thorize the executor to receive it from him. If the refunding bond could be given, an extraordinary result might fol- low. The plaintiff, before the payment of the money by the garnishee, always gives security to restore the amount re- ceived, if within a year and a day the defendant should appear to disprove the debt. If, within the year and a day, the defendant issue his scire facias ad dis- probandum debitum and succeeds, and re- covers back his legacy, he tlien gets it without giving any refunding bond ; and the plaintiff may be compelled, in the event of new debts against the estate being afterwards established, to pay the amount a second time on his refunding bond. Such consequences evince that the process by foreign attachment cannot be harmonized with the acts of assembly concerning the recovery of legacies. " Another circumstance of weight is, that an executor or administrator is, to a certain extent, an officer of the law, clothed with a trust to be performed under prescribed regulations. It would tend to distract and embarrass those officers, if, in addition to the ordinary duties which the law imposes, of them- selves often multiplied, arduous, and re- CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. §501 § 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, because 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- sponsible, they were drawn into conflicts created by the interposition of creditors of legatees, and conipeLled to withliold payment of legacies without suit ; to suspend indefinitely the settlement of estates; to attend, perhaps, to numerous rival attachments ; to answer interroga- tories on oath, and to be put to trouble and expense for the benefit of third per- sons, no way connected with the estate, nor within the duties of their trust. It has been decided that money in the hands of a prothonotary or sheriff cannot be intercepted by a creditor of the ijarty entitled to it ; but it must be paid over to himself only. The case of an executor or administrator is analogous to that of a sheriff or prothonotary. He has the funds in his hands as an officer or trustee authorized by law ; and if a new party were allowed to levy on it by attachment, there would be no end of disputes and lawsuits ; and no business could be cer- tain of ever being brought to a close within a reasonable time. It is of great importance to the interests of heirs, creditors, and legatees, that the affairs of a decedent's estate be kept as simple and distinct as possible, that its concerns be speedily closed and tiie estate adjusted. It is moreover settled that an executor cannot be sued as defendant, in an at- tachment by a creditor of the testator, and tlie goods of the testator attached to recover the debt. The reason is, that the estate of the testator ought to come into the hands of the executor, that he may administer it according to law, and pay the debts if tlie assets suffice ; and they ought not to be stopped, and the executor subjected to new responsibilities, by proceedings in attachment. Tliese reasons apply with equal force to the attempt to make an executor garnishee, for the purpose of paying out of the assets in his hands the debt due to a creditor of a legatee. These funds must travel only iu the path pointed out by the laws relating to decedents' estates, in their various branches, and cannot be diverted out of that patli without inter- fering with salutary regulations, and violating some of the most important provisions of tlie acts of assembly." See Barnett v. Weaver, 2 Wharton, 418; Young V. Young, 2 Hill (S. C), 42-5. 1 Piper V. Piper, 2 New Hamp. 439 ; Woodward v. Woodward, 4 Halsted, 115. - Revised Statutes of Massachusetts, c; lOU, § 62. 3 Holbrook v. Waters, 19 Pick. 354 ; Wheeler v. Bowen, 20 Ibid. 563. [419J § 503 CAPACITY TN ^VHICH GARNISHEE [CHAP. XXII. cient for the pa^anent, 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 not be entitled to any continuance thereafter, for the purpose of having that fact determined by the settlement of the estate.^ In all such cases the attaching plaintiff must, if required by the ex- ecutor, 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 liable as garnishees in respect of property 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 hands.^ § 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- ' Cady V. Comey, 10 Metcalf, 459. Court of Massachusetts distinguislied the 2 Hoar V. Marshall, 2 Gray, 251. case of a spendthrift under guardianship 8 Cady V. (yomey, 10 Metcalf, 459. from that of a minor, and charged as 4 Stills V. Harmon, 7 Gushing, 406. garnishee a tenant of the ward's prop- 5 Gassett v. Grout, 4 Metcalf, 486; erty, on account of rent due for the Hansen v. Butler, 48 Maine, 81 ; Perry v. premises, which he was bound to pay to Tliornton, 7 Rhode Island, 15; Godbold the guardian. V. Bass, 12 Richardson, 202. In Hicks v. ^ Davis v. Drew, 6 New Hamp. 399. Chapman, 10 Allen, 463, the Supreme [420] CHAP. XXII.] HOLDS defendant's propeety. § 505 ingly find that, almost without exceiDtion, the courts in England ^ and this country have taken decided ground against all attempts to reach, by garnishment, money in the hands of sheriffs, received and held by them in their official capacity. § 504. This subject has been presented in three aspects : 1. By the levy of an execution by an ofl&cer 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 which 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 ab- straction by a circuitous and less direct method. We shall, there- fore, in the consideration of the subject, use indiscriminately the decisions relating to the three modes of proceeding above re- ferred to. § 505. The first and leading case in this country, 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 ofl&cer ? The court decided the former aflfirm- 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. 1 1 Leonard, 30, 2G4 ; Priv. Londini, Bacon's Abridgment, Customs of Lon- 265 ; Comyns's Digest, Attachment, D ; don, H. [421] § 505 CAPACITY IN WHICH GARNISHEE [CHAP. XXn. But has money, not yet paid to the creditor, become his prop- erty ? That is, althougli liis 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 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 by 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 sura 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, and 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.^ In Ohio, the same question arose, in consequence of a sheriff levying an attachment on money in his hands collected under ex- ecution. 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 with its command, which 1 Turner v. Fendall, 1 Cranch, 117. ^ Ywsi v. Miller, 4 Bibb, 311. [422] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 506 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 de- mand was absorbed in costs." ^ § 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- eign 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 money, for which he is accountable to a third person. An attempt is made to inter- rupt the execution of the precept, and to divert the money from 1 Dawson v. Ilolcombe, 1 Ohio, 135. Lovejoy v. Lee, 35 Ibid. 430; Crane v. See Prentiss v. Bliss, 4 Vermont, 513; Freese, 1 Harrison, 305. Dubois V. Dubois, 6 Cowen, 4'J4 ; Crane » Adams v. Barrett, 2 New Hamp. V. Freese, 1 Harrison, 305; Keddick v. 374. Smith, 4 Illinois (3 Scamnion), 451. ■« Woodbridge v. Morse, 5 New Ilamp 2 Conant v. Bioknell, 1 D. Chipnian, 519. 50 ; Ilurlburt v. Hicks, 17 Vermont, 193 ; 5 Wilder v. Bailey, 3 Mass. 289. [423] §50.6 CAPACITY IN WHICH GARNISHEE [CHAP. XXH. 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 the money was neither goods nor effects of the execution plain- tiff, thus proceeds : " Neither can this money, 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 money 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-keef)ing. 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 /w^'s 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 by the offi- cer alone, to secure to himself the use of the money, which, from its amount, might vastly overbalance the triffing expenses which he would incur." Parsons, 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 late expression of the views of that court on this subject, was in a case where an officer, charged with the service of crim- 1 Pollard V. Ross, 5 Mass. 319. [424] CHAP. XXII.] HOLDS DEFENDANT'S PEOPERTY. § 508 inal process against a person, arrested him, and, as incidental to the service of the process, took from him money and property found in his possession. The next day, being satisfied that the 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 ofiicer, 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 ofiicer in the performance of his ofiicial dut}^ and that, therefore, he could not be charged in respect thereof.^ The doctrine settled in Massachusetts, has been also established in Maryland, North Carolina, South Carolina, Alabama, Tennes- see, Illinois, 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 ofiicial character affords him no protection from garnishment. In all the cases considered, the money was 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 1 Robinson v. Howard, 7 Gushing, 1 Tennessee, 208 ; Drane «. McGavock, 7 257 ; Morris v. Penniman, 14 Gray, 220. Humphreys, 132 ; Lightner v. Steinagel, 2 Farmers' Bank v. Beaston, 7 Gill & 33 Illinois, 510 ; Marvin v. Hawloy, 9 Johnson, 421 ; Jones v. Jones, 1 Bland, Missouri, 382 ; Clymer v. Willis, 3 443 ; Overton y. Hill, IMurphey, 47; Blair California, 363; Staples v. Staples, 4 V. Cantey, 2 Speers, 34 ; Burrell v. Letson, Maine, 532 ; Hill v. La Crosse & M. R. R. Ibid. 378 ; 1 Strobhart, 239 ; Zurcher v. Co., 14 Wisconsin, 291. Magee, 2 Alabama, 253 ; Pawley v. Gains, » Sharp v. Clark, 2 Mass. 91. [425] § 509 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. be. Tlierefore, Avhere a sheriff, holding an execution, sells prop- erty, and after satisfjung" the execution there is a surplus in his hands, it is considered to belong to the defendant, and to be held by the sheriff in a j)rivate, and not in liis 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 wliose 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 eustodia legis^ 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 paid 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.^ § 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 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 ' Watson V. Todd, 5 Mass. 271 ; Orr 35 Vermont, 439 ; Adams v. Lane, 38 V. McBryde, 2 Carolina Law Repository, Ibid. 640. 257 ; King v. Moore, 6 Alabama, 160 ; ^ Cole v. Wooster, 2 Conn. 203. Tucker v. Atkinson, 1 Humpbreys, 300 ; ^ Robertson v. Beall, 10 Maryland, Davidson v. Clayland, 1 Harris & John- 125. son, 546 ; Jaquett v. Palmer, 2 Harring- * New Haven Saw-Mill Co. v. Fowler, ton, 144 ; Wbeeler v. Smith, 11 Barbour, 28 Conn. 103. 345 ; Hearn v. Crutcher, 4 Yerger, 461 ; ^ Ross v. Clarke, 1 Dallas, 354 ; Alston Pierce v. Carleton, 12 Illinois, 358; Light- v. Clay, 2 Haywood (N. C), 171. ner n. Steinagel, 33 Ibid. 510; Dickison « Hunt v. Stevens, 3 Iredell, 365; V. Palmer, 2 Richardson Eq. 407 ; Hill v. Drane v. McGavock, 7 Humphreys, 132. Beach, 1 Beasley, 31 ; Lovejoy v. Lee, [426] CHAP. XXII.] HOLDS DEFENDANT'S PROPERTY. § 509 a 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 money 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 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 judg- ment. 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 accountable 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 of chancery ; ^"^ to a trustee holding property which, by the terms of the trust, is to be disposed of by the order of a court ; " and to a master in chancery holding property under and subject to such order.^2 But this rule is subject to this qualification, — that if the right 1 Farmers' Bank v. Beaston, 7 Gill & "^ Field v. Jones, 11 Georgia, 413. Johnson, 421 ; Murrell v. Johnson, 3 Hill ^ Nelson v. Connor, 6 Robinson (La.), (S. C), 12; Bowden v. Schatzell, Bailey 339. Eq. 3G0. 9 Hagedon v. Bank of "Wisconsin, 1 '^ Gaither v. Ballew, 4 Jones, 488. Pinney, 61. 8 Dunlop V. Paterson F. I. Co., 19 New i" Bentley v. Shrieve, 4 Maryland Ch'y York Supreme Court, 027. Decisions, 412. * Daley v. Cunningham, 3 Louisiana ^^ Cockey v. Leister, 12 Maryland, Annual, 55. 124. 5 Hanna v. Bry, 5 Louisiana Annual, i'^ McKenzie v. Noble, 13 Richardson, 651. 147. 6 Glenn v. Gill, 2 Maryland, 1 ; Taylor V. Gillian, 23 Texas, 508. [427] § 510 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. of the attachment defendant to money held by a trustee, receiver, or otlier 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 de- fendant, there is no doubt that it may be done after such an order has been made.* § 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- 1 Van Riswick t'. Lamon, 2 Mac Ar- * Weaver v. Davis, 47 Illinois, 235 ; thur, 172. Williams v. Jones, 38 Maryland, 555. 2 Langdon v. Lockett, 6 Alabama, And see Ante, § 497 for analogous rul- 727. ings in the case of an administrator. 3 McPherson v. Snowden, 19 Mary- ^ Corbyn v. Bollman, 4 Watts & Ser- land, 197. See Groome v. Lewis, 23 Ibid, geant, 342. 137. [428] CHAP. XXn.] HOLDS DEFENDANT'S PROPEKTY. § 512 liar to their system 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 Banlcruptey. In Massachusetts, it has been decided that eifects 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 sub- ject them to the j)ayment of his debts. Therefore, where an assignee was garnished in an action against a creditor of the bankrupt, 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 Supreme Court of that State overruled the cases just cited, and held that an assignee under the insolvent law, having money in his hands, payable to the defendant as a cred- itor of the insolvent, could not be charged as garnishee in respect thereof.^ § 512. Disbursing 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 ; ^ and that a treasurer of a school district could not be so charged.' A similar case arose in Ken- 1 Clark V. Boggs, 6 Alabama, 809. ^ Colby v. Coates, 6 Gushing, 558 ; 2 Oliver v. Smitii, 5 Mass. 183. Dewing v. Wentworth, 11 Ibid. 499. 3 Farmers' Bank v. Beaston, 7 Gill & ^ Ante, § 493 ; Chealy v. Brewer, 7 Johnson, 421. Mass. 259 ; Bulkley v. Eckert, 3 Penn. * Jones V. Gorham, 2 Mass. 375 ; De- State, 368 ; Pierson v. McCorraick, 1 coster V. Livermore, 4 Ibid. 101. Penn. Law Journal li. 201. 7 Ante, § 494. [4-29] § 012 CAPACITY IN WHICH GARNISHEE [CHAP. XXII. tuck)'', 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 in Illinois, it was held, that a treasurer of a city could not be charged as garnishee, on account of salary due from the city to an employee, though tlie account therefor had been audited, and the treasurer had the money in his hands to pa}-^ it.^ 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 attach- ment 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, however, given against him, and, on appeal to the Superior Couit of the county, was affirmed. The case went thence to the Supreme Court of the United States, which tribunal reversed the judgment, 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 princi- ple 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 gov- ernment are specifically appropriated to certain national objects, and if such appropriations 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 disburs- ing 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 i Webb V. McCauley, 4 Bush, 8. - Triebel v. Colburn, 64 Illinois, 376. [430] CHAP. XXII.] HOLDS DEPENDANT'S PROPEBTY. § 515 cannot, in any l^gal sense, be considered a part of his effects. The purser is not the debtor of the seamen.'' ^ § 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 ca'pita^'' 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, Avill 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 only way to reach it is by garnishment of the principal.^ The case is different, however, where the money is collected for the defendant by A^s 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 1 Buclianan v. Alexander, 4 Howard ' 8 Neuer v. O'Fallon, 18 Missouri, 277 ; Sup. Ct. 20. See Averill v. Tuclon, 23 Louisiana Annual, Georgia, 240. 752. See Spalding v. Imlay, 1 Root, 551. 5 Tracy v. Iloriibuckle, 8 Bush, 336. *> Bank of Tennessee v. Dibrell, 3 Sneed, 379. § 516 h CAPACITY IN WHICH GAKNISHEE, ETC. [CHAP. XXH. 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 cer- tain 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 respect of the gold coin which was, when he was garnished, in his hands.^ § 516 b. Though a municipal corporation be, by express law, exempt from garnishment, it may waive the exemption, and sub- 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.^ 1 Wilson V. Bank of Louisiana, 65 Georgia, 98. '■^ Clapp V. Davis, 25 Iowa, 315. [436] . CHAP, xxin.] garnishee's liability, etc. §517 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 ac- countability 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 garnishment cannot have the effect of changing the nature of a contract be- tween 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.^ 1 The doctrine thus stated was cited, in terms, and adopted by the Court of Appeals of Maryland, in Baltimore & Ohio R. R. Co. V. Wheeler, 18 Maryland, 372, where it was attempted to charge that company as garnishee, in respect of moneys received by it on account of the Central Ohio Railroad Company. The roads of these two companies terminated opposite to each other on the banks of the Ohio River, and an arrangement ex- isted between the two companies for " through " transportation of goods and passengers, by the transfer thereof from one road to the other; each company receiving the fare or toll due for the other over both roads. In this way there were mutual accounts to be settled between the companies, for the receipts of each on the other's behalf; which were settled monthly, the balances being always in favor of the Baltimore & Ohio Company. The court held, that under such circum- stances, moneys received by that com- pany for the other were not subject to attachment, unless, upon a settlement of accounts between them, there should be found a balance in favor of the latter ; and while the arrangement existed be- tween them, as stated, it could not be broken up by an intervening attachment. The same doctrine, in efiFect, was previ- ously enforced by the same court, in Poe V. St. Mary's College, 4 Gill, 499. See Troxall v. Applegarth, 24 Maryland, 163. In Connecticut an insurance company was garnished, in a suit against a de- fendant who held a policy of insurance issued by the company, under which a loss had occurred. One of the conditions of the policy was, " that the assured shall, if required, submit to an examina- tion under oath by any person appointed by the company, and if deemed necessary by the company, to a second examination, and subscribe to such examination when reduced to writing ; and shall produce his books," &c. ; and that "until such proofs, declarations, and certificates are produced, and examinations and ap- praisals permitted, the loss shall not be payable." It appeared that when the defendant's proofs of loss were received by the company, it was not satisfied [437] § 517 garnishee's liability [chap. XXIII. Therefore, where goods were shipped by the defendant to the gar- nishee, and a bill of exchange was drawn on the garnishee, which, before the goods were received, was presented, and he refused to accept it, and it was returned to the drawers ; and soon afterwards the goods arrived, and the garnishee called on the persons 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 sum- moned as garnishee of the shippers of the goods, and in his an- swer 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 binding 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 therewith, but claimed that tlie state- But the garnishees have not been in ments therein were not true, and imme- fault. Having used due diligence to diately required that the assured should notify the assured that they required the submit to an examination ; and that the performance of this stipulation, they garnishee used due diligence to notify clearly ought not to be held to have the assured of such requirement, but was waived its performance. If the assured unable to find him, and tliat he had not has intentionally absented himself so submitted to such examination. The that he cannot be notified that perform- court held the garnishee not chargeable, ance of the stipulation is required, he and said : " Now as the plaintiffs stand should be held to have had notice, upon the right of the assured, and are in And if for any cause, whether by his no better condition than he would be, fault or otherwise, he cannot be notified, were he now prosecuting this suit for the that may be his misfortune, or the mis- damages caused by the loss, it becomes fortune of those claiming under or through important to determine whether the stip- him, but is no reason for treating as in- ulation for his personal examination is a operative an important stipulation which condition precedent to his right under the garnishees saw fit to require, and the the policy. The plaintiffs insist that it assured to give, as a condition which is not such a condition in this case, be- was to be complied with before there cause it does not appear that notice that could be any obligation to pay for the a personal examination was required has loss." See Harris v. Phoenix Ins. Co., 35 ever been brought home to the assured. Conn. 310 ; Cliapin v. Jackson, 45 Indiana, If this were so in consequence of the 153. fault of the garnishees, there would ^ Grant v. Sliaw, 16 Mass. 341. doubtless be force in the suggestion. '^ Curtis v. Norris, 8 Pick. 280. [438] CHAP. XXIII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 517 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 thera 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 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 ' Armor i'. Cockhurn, 4 Martin, n. 8. ^ Owen v. Estes, 5 Mass. 330. 067 ; Cutters v. Baker, 2 Louisiana An- » Mayhevv v. Scott, 10 Pick. 54. nual, 272 ; Oliver v. Lake, 3 Ibid. 78 ; < Lundie v. Bradford, 2G Alabama, Burnside v. McKinley, 12 Ibid. 505. 512. [439] § 517 garnishee's liability [chap. XXIII. pursuance of a written agreement, signed by the plaintiffs, the defendants and the garnishee, put into the garnishee's hands to sell, and appl}^ 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 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 which 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, upon 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 after 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 1 Collins V. Brigham, 11 New Hamp. * Trultt v. Griffin, 61 Illinois, 26. 420. 5 McCoy v. Williams, 6 Illinois (1 2 Dryden I". Adams, 29 Iowa, 195. Gilman), 584; Grain v. Gould, 40 Ibid. 3 Ellis V. Goodnow, 40 Vermont, 237. 239. [440] CHAP. XXIII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 518 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 gar- nishment, was in his own wrong, and did not discharge him from liability.! § 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- sary, 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 place." 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 writino- 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 delivered 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 .2 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 1 Smith V. Picket, 7 Georgia, 104. '-' Clark v. Brewer, 6 Graj, 320. [441] § 0-20 garnishee's liability [chap, xxiil of an express company in Boston, which had in its hands in transitu a package of money which, as a common carrier, it had a<;reed to deliver to the defendant at Norwich, Connecticut. The court decided that there was no reason why a common car- rier shouhl not be subjected to liability as a garnishee, and that as the garnishee had money of the defendant in its hands m that State, it was chargeable though the money was deliverable in an- other State.^ In Illinois, however, it was held, that a railroad company could not be charged as garnishee in respect of prop- erty which it was transporting, and which was not at the time of the garnishment in the county where the writ issued ; and the court expressed grave doubts as to the liability of such a com- pany in such a case under any circumstances.^ § 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 re- covered, 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, l)Oth 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 1 Adams v. Scott, 104 Mass. 164. 3 Webster v. Randall, 19 Pick. 13. '^ Illinois C. R. R. Co. v. Cobb, 48 Illi- nois, 402. [44-J] CHAP. XXTII.] AS AFFECTED BY PREVIOUS CONTRACTS. § 520 the question was, whether the money in his hands received from A., could be subjected to the attachment, notwithstanding the ao-reement of wager. 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, nnless 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 Massachusetts, holding all wagers on the result of popu- 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 Clark V. Gibson, 12 New Hamp. 386. See Wimer v. Pritchartt, 16 Missouri, 252. 2 Ball V. Gilbert, 12 Metcalf, 397. See Eeynolds v. McKinney, 4 Kansas, 94. 3 Speise v. McCov, 6 Watts & Sargeant, 485. [443] § 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 ; H. Liens ; III. Mortgages and Pledges. § 522. I. Assignments, legal and equitable. Where a garnishee holds property which once belonged to the defendant, but which, 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 Sandidge v. Graves, 1 Patton, Jr. & ^ Cowles v. Coe, 21 Conn. 220. Heath, 101. [444] 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 hond 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 hond fide ^ and upon sufficient consid- eration.2 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 pay a divi- dend out of them to such of A. & Co.'s creditors as were 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 conformity 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 NewHamp. 153. [445] § 524 garnishee's liability as affected [chap. XXIV. received b}' 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 there 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 stipulation, 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." ^ 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 property 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 summoned, 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 assert his rights, and to be called upon to defend them. Where 1 Hooper y. Hills, 9 Pick. 435. * Thomas v. Goodwin, 12 Mass. 140. ^ Knight V. Gorham, 4 Maine, 492. ^ Hutchins v. Sprague, 4 2s^ew Hamp. 3 Kipley v. Severance, 6 Pick. 474. 409. [446] CHAP. XXIY.] BY ASSIGNMENTS AND LIENS. § 525 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 establishing the fraud would not be conclusive upon him ; and if not thus con- clusive, 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 prop- erty 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 requested to pay to his order, in thirty days, the sum of one thousand 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 the consignor; it was decided that the order, not being made to a third person, could not operate as an assignment, and neither was 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 garnishees of A., and B. disclaimed 1 Simpson v. Tippin, 5 Stewart & For- v. Brownlee, 2 Speers, 519 ; People v. ter, 208. Johnson, 14 Illinois, 342 ; Dolsen v. '^ Baker v. Moody, 1 Alabama, 315 ; Brown, 13 Louisiana Annual, 651 : Rob- Clark y. Cilley, 3G Ibid. 652; Kelly v. ertson v. Scales, Ibid. 545; Connelly i-. Koberts, 40 >;ew York, 432. Harrison, 16 Ibid. 41; Hearn r. Foster, a Briggs V. Block, 18 Missouri, 281 ; 21 Texas, 401 ; Center v. McQuesten, 18 Sproule V. McNulty, 7 Ibid. 62. See Kansas, 476. Brown v. Foster, 4 Cashing, 214; State * Cushnian v. Ilaynes, 20 Pick. 132. [447] § 526 garnishee's liability as affected [chap. XXIV. any right to the money, they were charged.^ So, where goods were shipped by A. to R., 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 ex- pression 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 between 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 con- sidered to be A.'s, and the bank liable 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 cotton ; 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 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 1 Myatt V. Lockhart, 9 Alabama, 91. & Dwight v. Bank of Michigan, 10 2 Dolsen v. Brown, 13 Louisiana An- Metcalf, 58. See Cammack v. Floyd, 10 ■ nual, 551. Louisiana Annual, 351 ; Smith v. Clarke, 3 Mayer y. Chattahoochie Nat. Bank, 9 Iowa, 241; Mansard v. Daley, 114 51 Georgia, 325. Mass. 408. * Redd V. Burrus, 58 Georgia, 674. [448] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 528 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 attaclnnent, to the person holding the prop- erty, if it be given in time to enable him to bring it to the atten- tibn 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 the 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- 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 1 Brooks V. Hildreth, 22 Alabama, 469. deman v. Hillsborough & Cin. R. R. Co., See Burnside v. McKinlcy, 12 Louisiana 2 Handy, 101 ; Smith v. Clarke, 9 Iowa, Annual, 505; Simpson v. Bibber, 59 241; Canal Co. y. Insurance Co., 2 Pliila- Maine, 196 ; Ray v. Faulkner, 73 Illinois, delphia, 354 ; Noble v. Thompson Oil Co. 469. 79 Penn. State, 354; McGuire i>. Pitts, 42 '•i Wakefield v. Martin, 3 Mass. 558. Iowa, 535. See Page v. Crosby, 24 Pick. 211; Bal- » Davis v. Taylor, 4 Martin, n. s. 134. derstone v. Manro, 2 Cranch C. C. 623 ; ^ Matheson v. Rutledge, 12 Richard- Walling V. Miller, 15 California, 38 ; Hal- son, 41. 29 [449] § 528 garnishee's liability as affected [chap. XXIV. 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 delivery 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 chose in action equitably assigned, is not subject to the operation of a foreign attachment instituted against the party whose name must necessarily be used at law for the recovery of the demand, and that an attaching creditor can stand on no better footing than his debtor. This abundantly appears from the English authorities, and the adjudications in our sister State courts, cited in the argument. A strong instance of this kind occurred in this court in January term, 1793. John Caldwell brought a foreign attachment against Vance, Caldwell, & Vance, and laid it on effects supposed to have been in the hands of Andrew and James Caldwell, who at one time were considerably indebted to them. Upon the plea of 7iulla bona, it appeared that a letter had been written authorizing Hugh Moore to receive this debt, and apply it towards payment of a debt due to Moore & Johnston ; and the jury, under the di- rection of the court, being satisfied that it amounted to an equitable appropriation of the demand, found that the garnishees had no effects in their hands due to Vance, Caldwell, & Vance. This court sanctioned the verdict by their judgment. In like manner a bond made assignable in its first creation, which requires by our act of assembly the ceremony of a seal and two witnesses to authorize the assignee to maintain a suit in his own name, if transferred bond fide, without seal or witnesses, is not liable to be attached for the debt of the obligee resident in a for- eign country. This appears perfectly plain." ^ 1 Legro V. Staples, 16 Maine, 252 ; Conn. 25 ; Dobbins v. Hyde, 37 Missouri, Adams v. Robinson, 1 Pick. 461 ; Nesmith 114 ; Newell v. Blair, 7 Michigan, 10.3. I'. Drum, 8 Watts & Sergeant, 9 ; Brazier ~ United States v. Vaughan, 3 Binney, V. Cliappell, 2 Brevard, 107 ; Lamkin v. 894. Phillips, 9 Porter, 98 ; Colt v. Ives, 31 [450] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 532 § 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 at- tachment is hiid, the creditor is bound to refund to sucli 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.^ § 530. Where it is provided by law, that when a garnishee discloses an assignment of the debt to a third person, the sup- posed assignee may be cited to become a party to the suit, in order to test the validity of the assignment, a judgment declaring the assignment invalid is binding on the garnishee ; and a judg- ment against him after a trial of the supposed assignment, will bar a subsequent 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 1 Bank of N. America v. McCall, 3 ^ Fisk v. "Weston, 5 Maine, 410 ; Born Binney, 338. v. Staaden, 24 Illinois, 320. - Garrott v. Jaffray, 10 Bush, 413. * Shattuck v. Smitii, 16 Vermont ' 132. [451] § 534 garnishee's liability as affected [chap. XXIV. 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 imphcation of law, from the usage of trade, or from the course of dealing between the parties, whence it may be in- ferred that the contract in question was made with reference to their usual course of dealing.^ § 533. If a garnishee having property of the defendant in his possession, has a vaUd 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.* § 534. 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 the defendant in his hands, it is not necessary that he should prove himself to be a creditor en- titled 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 1 Bouvier's Law Dictionary. Nolen v. Croolc, 5 Humplireys, 312 ; Smitii 2 2 Wheaton's Selwyn, 4tli Am. Ed. i-. Clarke, 9 Iowa, 24L 537. ^ Grant v. Sliaw, 16 Mass. 341 ; Curtis Nathan v. Giles, 5 Taunton, 558 ; v. Norris, 8 Pick. 280. Ivirkman v. Hamilton, 9 Martin, 297 ; [452] CHAP. XXIV.] BY ASSIGNMENTS AND LIENS. § 536 in fact paid any of the bills. And there is no difference between bills accepted and not paid, and bills not accepted. The lien ex- tends 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 tirae.^ § 535. In South Carolina, a statute provides, that if the de- fendant, whose property is attached in the hands of a garnishee, 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 ani/ debt due from the defendant to him, whether, by the general principles of law, he would have such lien or not. But the garnishee's claim must be a debt, not a mere liability, in virtue of which he may or may not be eventually subjected to loss. Therefore, it was held, that a surety not having 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 possession.^ Under this statute, this case arose. A. sent an order to B. to purchase on his account a quantity of cotton, which B. purchased and forwarded ; the last of it being sent on the 3d of September. 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 28th of November, 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 ques- tions were raised : 1. Whether, when the attachment was levied, A. was indebted to B. ; and, 2. Whether B. had then, as con- signee of the ship, such possession of her as to entitle him to the benefit of the statute. Both questions were decided in the affirm- ative ; and the attachment declared inoperative as against B.^ § 536. Whether the garnishee has a right to hold the de- fendant's property against an attachment, must depend on the 1 Bank v. Levy, 1 McMuUan. 431. " Mitchell v. Byrne, 6 Richardson, 2 Yongue y. Linton, 6 Richardson, 275. 171. [453] § 539 garnishee's liability as affected [chap. XXIV. actual existence of a lien, as contradistinguished from mere pos- session. 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 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 there- by compelled to look to the real estate alone for his security.^ § 538. III. Mortgages and Pledges. A pledge or pawn is a bailment of personal property, as a security for some debt or en- gagement. A mortgage of goods is distinguishable from a mere pawn. By a grant or conveyance of goods in gage or mortgage, 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 consummated, except by possession ; and ordinarily when that possession is re- linquished, the right of the pledgee is extinguished or waived. But in the case of a mortgage of personal 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 property in his hands, only when the property is capable of being 1 Allen V. Hall, 5 Metcalf, 263. 3 Scofield v. Sanders, 25 Vermont, 2 Allen V. Megguire, 15 Mass. 490; 181; Goddard y. Hap good, Ibid. 351. Bailey v. Eoss, 20 New Hamp. 302. * Story on Bailments, 4th Ed. § 286, 287. [454] CHAP. XXIY.] BY ASSIGNMENTS AND LIENS. § 539 seized and sold under execution. Upon general principles, and in the absence of statutory interposition, an execution cannot be levied on a mere equity. The interest of a pledger or mortgagor in personalty pledged or mortgaged, is the mere equitable right of redemption, by paying the debt, or performing the engage- ment, for the payment or performance of which the property was pledged or mortgaged. Hence, personalty so situated is not sub- ject to sale under execution, and, therefore, not attachable.^ It follows that the pledgee or mortgagee of personalty cannot be held as garnishee of the pledger or mortgagor, while the property is the subject of the pledge or mortgage.^ Especially not where the mortgagee is not in possession of the property ; and he is not under obligation to take possession of it, so as to make a fund capable of being attached by a creditor of the mortgagor .^ Nor, if there be no agreement that he shall sell the property to pay the debt for which it is pledged or mortgaged, can he be com- pelled to do so ; ■* but if there be such an agreement, and the property, in pursuance thereof, be sold, any surplus remaining after the payment of the debt secured may be reached by gar- nishment.^ But in order to the mortgagee's immunity from lia- bility as garnishee of the mortgagor, the mortgage must be for a debt incurred or liability encountered before the garnishment. While it is conceded that a mortgage may be valid, containing a stipulation for securing future advances and liabilities on the part of the mortgagee, yet it will secure only such as have been made or assumed before other interests have intervened. After the mortgagee has been subjected to garnishment in an action against the mortgagor, no new and independent indebtment, either by moneys advanced or liabilities assumed, will defeat the lien of the attachment, or have a priority to the same under the mortgage.^ 1 Badlam v. Tucker, 1 Pick. 389 ; An- v. Hunt, Ibid. 538 ; Howard v. Card, 6 drews v. Ludlow, 5 Ibid. 28 ; Holbrook v. Maine, 353 ; Callender v. Furbisli, 46 Baker, 5 Maine, 309 ; Haven v. Low, 2 Ibid. 226 ; Kergin v. Dawson, 6 Illinois New Hamp. 13;Picquet v. Swan, 4 (1 Oilman), 86 ; Patterson j;. Harland, 12 Mason, 443; Thompson v. Stevens, 10 Arkansas, 158. Maine, 27 ; Sargent v. Carr, 12 Ibid. 396 ; » Curtis v. Raymond, 29 Iowa, 52 ; Lyle V. Barker, 5 Binney, 457 ; Hall v. First National Bank v. Perry, Ibid. 266. Page, 4 Georgia, 428. * Badlam v. Tucker, 1 Pick. 389; ■i Badlam v. Tucker, 1 Pick. 389 ; Cen- Howard v. Carl, 6 Maine, 353. tral Bank v. Prentice, 18 Ibid. 396 ; Whit- 5 Badlam v. Tucker, 1 Pick. 389. ney v. Dean, 5 New Hamp. 249 ; Hudson 6 Barnard v. Moore, 8 Allen, 273. [455] § 540 garnishee's liability as affected, etc. [chap. XXIV. § 540. Any relinquishment, however, of a lien, will open the way for the garnishment of the pledgee. Therefore, where a creditor who had property in his possession which he supposed to be pledged to him for the payment of a debt due him, was summoned as garnishee of his debtor, and afterwards caused the property to be attached by a writ in his own favor ; it was held, that he had relinquished the lien he claimed to have had by the delivery of the property as a pledge, and was, therefore, subject to garnishment.^ 1 Swett V. Brown, 5 Tick. 178. [456] CHAP. XXV.] garnishee's LIABILITY AS A DEBTOR. § 541 a CHAPTER XXV. THE garnishee's LIABILITY AS A DEBTOR OF THE DEFEND- ANT. — GENERAL VIEWS. — DIVISION OF THE SUBJECT. § 541. We reach now the consideration of a garnishee's liabil- ity in respect of his indebtedness to the defendant, — a field of inquiry coextensive with that over which we have just passed, in relation to the kindred topic of his liability in regard to property of the defendant in his possession. The two subjects will be seen to have many principles in common. For instance, we have seen that, except in cases of fraudulent transfers, the garnishee's liability for the defendant's property in his possession, depends much upon whether the defendant has a right of action against him for the property. So, in order to charge a garnishee as a debtor of the defendant, it is a general principle — subject, of course, to exceptions — that the defendant shall have a cause of action, present or future, against him.^ § 541 a. No liability can be enforced against a garnishee for a debt based upon an illegal consideration. Thus, where A., an inhabitant of Maine, was indebted to B., an inhabitant of Massa- chusetts, for the price of intoxicating liquors purchased from B., in the latter State, with intent to sell the same in the former, where such sale was forbidden by law; it was held, that A. could not be charged in the courts of Maine as garnishee of B., because B. could not in the courts of that State have maintained an action against him for the price. ^ 1 Maine F. & M. Ins. Co. v. Weeks, 7 273; Harrell v. Whitnnan, 19 Ibid. 135; Mass. 438 ; White v. Jenkins, 16 Ibid. Cook v. Walthall, 20 Ibid. 334 ; Kettle v. 62 ; Brigden v. Gill, Ibid. 522 ; Rundlet Harvey, 21 Vermont, 301 ; Patton v. V. Jordan, 3 Maine, 47 ; Haven v. Wen^ Smith, 7 Iredell, 438 ; Lundie v. Brad- worth, 2 New Hamp. 93; Adams t>. Bar- ford, 26 Alabama, 512; Hall v. Magee, rett. Ibid. 374 ; Piper i;. Piper, Ibid. 439 ; 27 Ibid. 414; McGehee v. Walke, 15 Greenleaf v. Perrin, 8 Ibid. 273 ; Paul v. Ibid. 183 ; Lewis v. Smith, 2 Cranch C. Paul, 10 Ibid. 117; Hutchins i;. Hawley, C. 571. 9 Vermont, 295; Hoyt v. Swift, 13 Ibid. 2 McGlinchy v. Winchell, 63 Maine, 129 ; Walke v. McGehee, 11 Alabama, 31. [457] § 543 garnishee's liability as a debtor. [chap. XXV. § 542. Pending the garnishment, the rights of the defendant are exchided and extinguished, only to the extent that may be necessary for the ultimate subjection of the debt or property in the garnishee's hands to the operation of the attachment. For ever}' purpose of making demand, or securing his claim by attach- ment or otherwise, the rights of the defendant remain unimpaired by the pendency of the garnishment. They subsist, however, in subordination to any lien created by that proceeding.^ § 543. By the custom of London a plaintiff may, by garnish- ment, attach, in his own hands, money or goods of the defend- ant. But can a plaintiif charge himself as garnishee, in respect of a debt due from him to the defendant, or can several plaintiffs summon one of their own number, with a view so to charge him? In Pennsylvania it was held, that the former might be done ; ^ but in New Hampshire, that it could not.^ The ques- tion, in the latter aspect, came before the Supreme Court of Mas- sachusetts, which declined expressly deciding it, because its decision was not necessary in the case, but gave a very distinct intimation of their views in the negative ; considering it a novel experiment, and quite distinguishable from the case of a plaintiff holding money or goods of the defendant, and attaching them in his own hands.* In Louisiana, however, it was held that it might 1 Hicks V. Gleason, 20 Vermont, 139. genious argument for the plaintiff goes ^ Coble V. Nonemaker, 78 Penn. State, mainly on the ground, that the trustee 501. process is in the nature of process in rem, 8 Blaisdell v. Ladd, 14 New Hamp. and therefore it is quite immaterial 129; Hoag u. Hoag, 55 Ibid. 172. whether the estate and effects to be 4 Belknap v. Gibbens, 13 Metcalf, 471. affected by the attachment are in the Shaw, C. J. : " Nor have we thought it hands of the plaintiffs, or one of them, necessary to express an opinion upon an- or in those of a third person. This is other question, considered in the argu- true in regard to that branch of the stat- ment, to wit, whether a plaintiff can ute which is designed to reach goods and summon himself, or whether several chattels, so deposited that they cannot plaintiffs can summon one of their own be reached by the ordinary process of number as a trustee. It is, as far as we attachment ; but in such case, it is wholly know, a novel experiment. The theory unnecessary, because the plaintiff, hold- of the trustee suit, the provisions for ing any such goods, which are attach- securing the relative rights of plaintiff able, can deliver them to the attaching and trustee, the rights of appeal, and the officer ; as every trustee is obhged to do general tenor of the law, seem to regard on execution, when he is charged on the suit, as between plaintiff and trustee, that ground. It is upon the other branch as an adversary proceeding, and to bring of the statute, affecting ' credits,' that the case within the rule, that a person the difficulty arises, where the purpose cannot sue himself, or be plaintiff and is to charge the trustee as the debtor of defendant in the same case. The in- the defendant. The trustee is regarded [458] CHAP. XXV.] GENEEAL VIEWS. §544 be done ; ^ and so in Vermont.^ In Tennessee, also, where the proceeding by attachment against non-residents is in chancery, this case arose. A., B., & C, as partners, were indebted to D., by note. D. sued on the note, and obtained judgment against A. & B., but not against C, who was a non-resident ; and issued execution, which was returned nulla bona ; A. & B. being insol- vent. C. held a note made to him by D. & E., which, to avoid the claims of creditors, he transferred by assignment to F., a res- ident, without consideration and for the benefit of C. Suit was brought on this note by F., and judgment obtained against D. & E., and all the money paid to C, except an amount equal to the claim of D. against C. on the note of A., B., & C. While mat- ters were in this position, D. filed his bill in chancery against C. and F., to subject the indebtedness of D. & E. to C, to the pay- ment of C.'s debt to D., and the court sustained the bill.^ § 544. That which the garnishment operates upon in this class of cases is credits. The term credit, in this connection, is used in as in some measure in privity with the defendant, and guardian of his rights. If, in his view, the judgment charging him as trustee is erroneous, and injuri- ous to the defendant, it is his duty to appeal and take the opinion of this court. But in the present case, it would be an appeal by the trustee from a judgment in favor of the plaintiffs, he being one. Again ; if he fail to pay over on execu- tion, a scire facias must be brought by the trustee and his partners, to compel the trustee to pay the debt out of his own effects. In theory of law, it is an adversary suit ; there is a conflict of rights between the plaintifT and trustee, bringing the case within the ordinary rule in regard to opposing parties." 1 Grayson v. Veeche, 12 Martin, 688 ; Richardson v. Gurney, 9 Louisiana, 285. 2 Lyman v. Wood, 42 Vermont, 113. 3 Boyd V. Bayless, 4 Humphreys, 386. The following are the grounds on which the bill was sustained : " The single question in this case is, whether a com- plainant, to whom a non-resident is in- debted, can, by virtue of the provisions of tlie Act of 1835-6, obtain a decree against his non-resident debtor, where the fund to be attached is in tlie hands of the complainant himself, or the debt or chose in action belonging to the non- resident is due from the complainant. We think, under such circumstances as are disclosed in this case, relief will be granted by virtue of the provisions of that act. If the non-resident, indeed, had with him the chose in action or note, nothing could be done. But where that is here deposited in the hands of an agent, or transferred to a mere trustee for his benefit, the attachment will lie, and the fact that the complainant owes the money, any more than a third person, will not have the effect to obstruct the remedy given by the statute. If the note had been given by E. alone to C, and had been by C. assigned as stated to F., it would not be doubted, by any one, for a single moment, that this bill might have been filed. But the fact that it was given by D. & E. can make no dif- ference in the view of a court of chan- cery ; it, to be sure, in order to make the remedy effectual, under the circum- stances of this case, requires that the court should enjoin the judgment of F., assignee, against D. & E. When the riglits of the parties are determined, that becomes the appropriate mode of relief in this particular case." See Arledge v. White, 1 Head, 241. [459] § 545 garnishee's liability as a debtor. [chap. XXV. the sense in which it is understood in commercial law as the correlative of debt. Wherever, therefore, there is a credit, in this sense, there is a debt, and without a debt there can be no credit.^ It was at one time attempted to hold by garnishment, not only debts due from the garnishee, but debts of others to the defendant, the evidence of which, as notes, bonds, or other choses in action, might be in the garnishee's hands ; but as it is well set- tled that choses in action are not attachable,^ the attempt failed, and it was held, that credits included only debts due from the garnishee to the defendant.^ § 545. We have said that it is usually necessary, in order to charge a garnishee, that the defendant should have a cause of action against him. It will of course be understood that it is not every cause of action that will render a garnishee liable, but only a cause of action for the recovery of a debt. Indeed, the rule announced in Alabama may be considered as authoritative, that no judgment can be rendered against a garnishee, when there is not a clear admission or proof of a legal debt due or to become due to the defendant ; * a debt for which the defendant might maintain an action of debt or indebitatus assumpsit.^ Therefore, where a stockholder in a corporation was summoned as garnishee, with a view to subject him to liability on account of the unpaid portion of his stock ; and it appeared that he had, before the garnishment, paid all the calls which had been made upon the stock ; it was held, that he could not be charged, because he was not liable to the corporation until a call should be made on him for payment.^ So, where the municipal authorities of a city adopted a resolution laying out a public way, and embracing, amono: other things, a resolution that a certain sum should be awarded and paid to A. ; it was held, that this was no debt of the city, for which A. could maintain an action, and therefore 1 Wentworth v. Whittemore, 1 Mass. 27 Ibid. 414 ; Nesbitt v. Ware, 30 Ibid. 471 ; Wilder v. Bailey, 3 Ibid. 289. 68 ; Powell v. Sammons, 31 Ibid. 552. See 2 Ante, § 481. Hassie v. G. I. W. U. Congregation, 35 8 Lupton V. Cutter, 8 Pick. 298. California, 378 ; Caldwell v. Coates, 78 * Pressnall v. Mabry, 3 Porter, 105; Penn. State, 312; Williams v. Gage, 49 Victor V. Hartford Ins. Co., 33 Iowa, 210. Mississippi, 777 ; Webster v. Steele, 75 s Walke V. McGehee, 11 Alabama, Illinois, 544. 273 ; Harrell v. Whitman, 19 Ibid. 135 ; « Bingham v. Rushing, 5 Alabama, Cook V. Walthall, 20 Ibid. 334; Lundie 403. V. Bradford, 26 Ibid. 512 ; Hall v. Magee, [460] CHAP. XXV.] GENERAL VIEWS. § 545 that the city could not be charged as his garnishee.^ So, where A. received from B. a sum of money, and in consideration thereof executed to B. a bond, with sureties, to make to him, on or before a day named, a title to certain land ; and before the time set for making the title, A. was summoned as garnishee of B. He an- swered stating the facts, and averring that he had not title to the land, and could not, therefore, make title thereto to B. It was sought to charge him as garnishee, in respect of his obligation to return the money to B. ; but the court held, that he was not B.'s debtor for that sum, because the time named in the bond for making the title had not yet arrived, and A., if he failed to make the title, would be liable on his bond for damages, and B. might not choose to receive back the sum he had paid, as a discharge of his claim against A.^ So, where A. executed a mortgage on land, conditioned for the support of B. during life, and for the payment on demand, after B.'s death, of $1,000 to C. ; and after B.'s death, A. was summoned as garnishee of C. ; it was decided that he could not be charged as such, because he had never promised or become obligated to pay that sum to C, though his title to the land was conditioned upon its payment.^ So, where goods were sold for cash on delivery, and after the vendor had delivered part of the articles, and had figured up the amount of the prices of the whole, and the purchaser took his wallet out of his pocket to pay for them, but before he could get the money ready to do so, he was summoned as garnishee of the vendor ; it was held, that the transaction was a sale for cash ; that the pur- chaser's failure to pay the cash entitled the vendor to reclaim the articles delivered ; and he having done so, there was no debt of the purchaser to him for which the purchaser could be charged as garnishee.'^ So, where a constable sold of a defendant's prop- erty more than sufficient to pay an execution, and took the note of the purchaser for the surplus, payable to the defendant, but without the defendant's consent, who did not receive the note ; the purchaser could not be charged as garnishee of the defend- ant, because the relation of debtor and creditor did not exist between them.^ So, where a son, from filial duty, took his father 1 Fellows V. Duncan, 13 Metcalf, 332 ; » Morey v. Sheltus, 47 Vermont, 342. Geer v. Chapel, 11 Gray, 18. ■* Paul v. Reed, 52 New Hamp. 136. 2 Grace v. Maxfield, G Humphreys, & Turner v. Armstrong, 9 Yerger, 412. 328. [461] § 545 a garnishee's liability as a debtor, [chap. xxv. and his family, avIio were poor, and had no other home, to his own house, and there supported them ; and the father labored for the son while so living with him, and his services were worth more than the support furnished ; but he had never claimed any further compensation, and the son had not expected to make any; the son was held not chargeable as garnishee of the father. 1 So, where a clerk of a court issued an attachment, un- der which property of the defendant was seized and sold, and the proceeds of the sale were paid into the hands of the clerk ; and it was afterwards decided that the clerk had no authority to issue the writ, and that all the proceedings under it were void ; and after that decision was given, creditors caused the clerk to be garnished, to subject the proceeds of the sale in his hands to their claims ; it was decided that the clerk was not a debtor of the defendant.^ § 545 a. Another instance in which the garnishee cannot be charged, though the defendant have a cause of action against him for a debt, is where, under an execution issued on a judg- ment rendered against an administrator for a debt of his intes- tate, a debtor of the decedent is garnished. Because, by allow- ing debtors of the estate to be garnished, the assets might be diverted from their lawful course of application, and so confusion 1 Cobb V. Bishop, 27 Vermont, 624. and his creditors cannot defeat tliem 2 Lewis V. Dubose, 29 Alabama, 219. by bringing a garnishment proceeding The grounds of the decision were as fol- against him who may have the funds lows : " The defendants in the attach- arising from the sale of the property, ment may sue for and recover the prop- Until the owner has made his election to erty sold if it can be found, or may bring sue for the money, which may be done an action for the tort committed ; or they by bringing an action for it, the person may waive the tort, and sue the clerk in having the money cannot, in any just assumpsit for the money arising from sense, be deemed his debtor. To allow the sale of the property under the void the money to be taken in attachment, attachment. But because the owners of might be productive of confusion and the property wrongfully sold might main- wrong. It could not prevent the owners tain an action of assumpsit to recover of the property from suing for its recov- the proceeds of the sale, it does not fol- ery, or for the damages, and would yet low that the money can be attached by concede to them the benefit of the appro- the creditors. The creditors have no priation of the money to the payment right to waive the tort, or to surrender of their debts, and leave the clerk who the right to recover back the property, received the money without the means or to release the damages against the of reimbursing the person against whom tort-feasor. Those are rights which ap- an action might be brought." pertain to the owner of property alone, [462] CHAP. XXV.] GENERAL VIEWS. § 546 be introduced into the settlement of estates, it is held, that such debtors cannot so be subjected to* garnishment.^ § 546. As we have seen,^ in regard to the liability of a gar- nishee for property of the defendant, there must be privity of contract and of interest between him and the defendant, in order to his being charged. The same rule applies to debts. There- fore, where the agent of a foreign insurance company was gar- nished, and it appeared that he had signed a policy of insurance, on behalf of the company, on property of the defendant, which was afterwards destroyed by fire ; it was held, that he could not be charged, and the court said : " The respondent is simply the agent of persons in a foreign country. He contracted in that character with the defendant on behalf of his principals, and acknowledges nothing due from them to the defendant. The demand of the defendant is upon the copartnership in London, and if he had by action maintained that demand, and recovered a judgment against the copartnership, it would not follow that the respondent was answerable as his trustee. Indeed, no state of facts, which could arise out of the transaction stated by him, could fix him as trustee of the defendant." ^ So, where certain persons signed a contract as a building committee of a religious congregation ; they were decided not to be liable as garnishees of the builder, because they were mere agents.* So, where one purchased property at an administrator's sale, and gave his note therefor to the administrator, as such, he could not be charged as garnishee of the payee of the note, on account of the payee's individual debt ; the money, though payable to him, not being due to him in his individual, but in his representative capacity.^ So, the maker of a note payable to J. B., trustee, was held not chargeable as garnishee of J. B. individually.^ So, where a county was garnished on account of money ordered to be paid by the county to the defendant for his services as a juror ; it was held, that the services had not been rendered on any contract, express or implied, between him and the county, but were ren- 1 Marvel v. Houston, 2 Harrington, * Hewitt v. Wheeler, 22 Conn. 557. 349 ; Hartshorne v. Henderson, 3 Peuu. See ante, § 514. Law Journal K. 511. ^ Leasing v. Vertrees, 32 Missouri, 431. '^ Ante, § 400. ^ Adams v. Avery, 2 Pittsburgh, 77. 3 Wells V. Greene, 8 Mass. 504. See Smith V. Posey, 2 Hill (S. C), 471; Lewis V. Smith, 2 Cranch C. C. 671. [463] § 548 garnishee's liability as a debtor. [chap. XXV. dered compulsorily, and did not constitute either " goods, effects, or credits " of the defendant in the liands of the county.^ § 547. A legal debt, as contradistinguished from an equitable demand, is that alone which will authorize a judgment against a garnishee ; at least under any judicial organization which sepa- rates legal and equitable jurisdictions. Therefore, where it was attempted to charge a garnishee of A., by showing that the gar- nishee had executed a note to B., which, at the time of the gar- nishment, was in the possession of A., but there was no proof that B. had indorsed the note, or that the garnishee had promised to pay it to A. ; it was held, that the court could not in this pro- ceeding assume to settle the equitable rights of the parties to the note, and that the plaintiff could hold only such debts as the de- fendant could recover by action at law in his own name ; that is, his legal rights as distinguished from equitable.^ So, where a judgment was recovered by A., for the use of B., against C, it was held, that C. could not be charged as garnishee of B., be- cause he was not legally indebted to him, and whatever equitable indebtedness there might be was not attachable.^ So, where the garnishee's indebtedness, if it existed at all, was based on unset- tled accounts between him and the defendant, as partners, he was held not chargeable.^ § 548. In no case where the claim of the defendant against the garnishee rests in unliquidated damages, can the garnishee be made liable. B. & P., partners, were summoned as garnishees of T., and it appeared that they had signed and delivered to T. a 1 Williams v. Boardman, 9 Allen, 570. to pursue such a course as to determine See Simons v. Whartenaby, 2 Penn. their respective and conflicting rights, Law Journal R. 438 ; Clark v. Clark, 62 renders it impracticable. Otherwise, two Maine, 255. or more copartners might be called in as 2 Harrell v. Whitman, 19 Alabama, trustees of another partner, and com- 135. See Hugg v. Booth, 2 Iredell, 282 ; pelled to render an account of the whole May V. Baker, 15 Illinois, 89 ; Barker v. copartnership, and strike the balance Esty, 19 Vermont, 131. In Hoyt v. Swift, between themselves and their copartner, 13 Vermont, 129, Collamer, J., said : and thus wind up a long and intricate " The debt for which the trustee is pur- concern, without the intervention of an sued, must be a debt which the defendant auditor or commissioner, and in the ab- could himself pursue at law. It is im- sence of their copartner ; and all this, practicable thus to enforce a mere equity too, when the defendant could have sus- claim. The want of chancery power in tained no action at law." the county court, to call all the parties ^ Webster v. Steele, 75 lUinois, 544. incidentally interested before them, and * ives v. Vanscoyoc, 81 Illinois, 120. [464] CHAP. XXV.] GENERAL VIEWS. § 549 paper in the following words : " This may certify that if Mr. S. T. should wish to purchase of us tin-ware at our wholesale prices within twelve months from date, and should have O. P.'s note in his possession, we will take the same in payment." Within twelve months from the date of this instrument, T. presented to B. & P. four notes of O. P., and demanded their amount in tin- ware at wholesale prices, and B. & P. refused to comply with the demand. It was contended that on this state of facts B. & P. might be held as garnishees of T. ; but the court decided that as T.'s claim was not a legal debt, but rested only in unliquidated damages, the garnishment could not be sustained. ^ So, a mere liability of the garnishee to an action on the part of the defend- ant for negligence, fraud, slander, or assault and battery ; ^ or for the wrongful conversion of the defendant's property ; ^ or for th6 recovery from a creditor of usurious interest paid him by the de- fendant ; ^ or for damages caused by a wrongful attachment ; ° cannot be the foundation of a judgment against the garnishee. So, a liability of a constable to an execution creditor, for a breach of official duty in respect to the collection of the execution, can- not be attached in an action by a creditor of the person to whom the constable is so liable. The officer's liability in such case is for a specific breach of duty, a mere tort^ and is no more subject to this process, than any other right of action in form ex delicto.^ Much less can the securities in an officer's official bond, against whom an action might be maintained for his failure to pay over money collected by him on execution, be held as garnishees of the execution plaintiff. *" § 549. A mere contract of indemnity, where no loss has been sustained by the party indemnified, cannot authorize the garnish- ment of the maker of the contract in a suit against such party. Thus, where an arrangement was made between A. & B., whereby 1 Huggy. Booth, 2 Iredell, 282; Deaver < Boardman v. Roe, 13 Mass. 104; r. Keitli, 5 Ibid. 374; Leefe v. Walker, Graham v. Moore, 7 B. Monroe, 53; 18 Louisiana, 1. See Rand v. White Barker v. Esty, 19 Vermont, 131 ; Fish Mountain R. R , 40 New Hamp. 79; Mc- v. Field, Ibid. 141 ; Ransom v. Hays, 39 Kean v. Turner, 45 Ibid. 203. Missouri, 445. 'i Rundlet v. Jordan, 3 Maine, 47 ; 8 Feet v. MeDaniel, 27 Louisiana An- Foster v. Dudley, 10 Foster, 463 ; Lorn- nual, 455. erson v. Huffman, 1 Dutcher, 625. « Ilemmenway v. Pratt, 23 Vermont, 3 Paul V.Paul, 10 New Hamp. 117; 332; Tliayer y. Southwick, 8 Gray, 229. Despatch Line v. Bellamy, Man. Co., 12 1 Eddy v. Heath's Garnishees, 31 Mis- Ibid. 205 ; Getcheli v. Chase, 37 Ibid. 106. souri, 141. 80 [465] § 549 garnishee's liability as a debtor. [chap. XXV. A. was to give his notes to C. for certain goods purchased by B., and B. was to furnish A. with the money to pay the notes as they matured, and the notes were given, but before they matured, A. became insolvent, and failed to pay the notes, and afterwards B. was summoned as garnishee of A. ; it was hekl, that his contract to indemnify A. was not, in the absence of a payment of tlie notes, or the sustaining of any damage by A., a ground for charging him, though it appeared that A.'s notes had been received by C. expressly in payment for the goods sold.^ But where under a contract of indemnity a loss has occurred, and the party indem- nified has a claim for such loss against him who engaged to in- demnify him, the latter may be charged as his garnishee in respect of such loss, if the contj'act furnish a standard by ivhich the amount of the liability may be ascertained and fixed. Thus, an insurance company may be so charged on account of a loss accruing under a policy of insurance issued by it ; for the liability to the insured clearly exists, and the policy furnishes the required standard. This has been held, not only as to adjusted claims for loss,^ but also as to such claims unadjusted.^ 1 Townsend v. Atwater, 5 Day, 298. In Downer v. Topliff, 19 Vermont, 399, a doctrine was maintained, which, so far as my observation extends, goes farther than any elsewhere announced, in reacli- ing, thiougli garnislinient, a liability to the defendant. A. executed a bond to B., a constable, to indemnify him for having attached certain property in a suit in favor of A. v. C. After the attachment, D. sued B., the constable, for taking the property, and recovered judgment against him for its value, and in that action sum- moned A. as garnishee of B. ; and the question was whetlier A. was liable as garnishee in respect of his having ex- ecuted the bond of indemnification to B. EoYCE, C. J., in delivering the opinion of the court, said : " We tliink there is no sufficient ground for saying that the claim against the trustee, upon their bond to B., did not constitute a kind of indebtedness, at the time when this proceeding was commenced, wliich might well be reached by the trustee process. The bond was given to B., an officer, to indemnify him for having attached certain property, at [466] the suit of the trustee A., as belonging to one C. And it is true, that, until a re- covery was had against B. for the prop- erty, at tlie suit of D., who made good his title to it, the bond constituted but a contingent claim against the signers, and, as such, was excluded from the operation of the trustee process by express statute. But after B. had been thus damnified, and a clear and substantial cause of action arose upon the bond, the signers became fixed with an obligation, which was cer- tain as to the liability, and uncertain only as to the amount for which they might be ultimately subjected. It was like any other indebtedness, where the amount is susceptible of dispute and controversy." ^ Boyle V. Franklin Fire Ins. Co., 7 Watts & Sergeant, 76; Franklin Fire Ins. Co. V. West, 8 Ibid. 350. 3 Knox V. Protection Ins. Co., 9 Conn. 4.30; Girard Fire Ins. Co. v. Field, 45 Penn. State, 129; 3 Grant, 329; North- western Ins. Co. V. Atkins, 3 Bush, 328. Sed contra, Gies v. Bechtner, 12 Minne- sota, 279 ; McKean v. Turner, 45 New Hamp. 203. CHAP. XXV.] GENERAL VIEWS. § 550 § 550. It may further be considered as settled, that the debt must be such as is due in money} All debts, in the absence of contrary stipulations between the parties, must be paid in money. Therefore, where the garnishee acknowledged an indebtedness to the defendant, payable in mason's work and materials, it was held, that he could not be charged.^ So, where the garnishee had given a bond to the defendant for " 1,500 acres of land war- rant, and 800 and odd dollars payable in whiskey." ^ So, where the garnishee had the defendant in his employ as a laborer, under an agreement that he should be paid in orders on another.^ So, where by the terms of a written agreement under which the gar- nishee's indebtedness to the defendant was payable in the gar- nishee's negotiable promissory notes.^ So, where the garnishee was indebted to the defendant in a certain sum to be paid in "store accounts."^ So, where the garnishee had given the de- fendant a due-bill for " 11,000 in brandy at $5 per gallon." ^ And where payment was to be made in notes of the defendant to other persons, to be procured by the garnishee, he was held not to be liable.^ And where one gave a note to another for a sum of money, " payable in boarding the wife and child " of the payee, it was decided that he was not chargeable.^ And where one gave a note payable in the notes or obligations of a certain bank- ing company, he was held not chargeable for the amount in money, if he delivered up the notes, to be disposed of by the court.^^ In all these cases the courts proceeded upon the obvious principle, that they had no power to interfere with the contract between the defendant and the garnishee, and to make the latter pay in money, what he had agreed to pay, and the defendant had agreed to receive, in something else.^^ Still we find in Maryland, that where a garnishee was indebted to the defendant in a sum of money, payable, by express agree- ment, in work and labor, he was charged. ^^ And in Massachusetts, 1 Mims V. Parker, 1 Alabama, 421. 8 Mims v. Parker, 1 Alabama, 421. '^ Wrigley v. Geyer, 4 Mass. 102. 9 Aldrich v. Brooks, 5 Foster, 241. 8 McMinn v. Hall, 2 Tennessee, 328. '0 Marshall v. Grand Gulf R. R. & See Blackburn v. Davidson, 7 B. Monroe, Banking Co., 5 Louisiana Annual, 360. 101 ; iSniitli v. Davis, 1 Wisconsin, 447. See Jennings v. Summers, 7 Howard * Willard v. Butler, 14 Pick. 550. (Mi.), 453. 5 Fuller r. O'Brien, 121 Mass. 422. " Bartlett v. Wood, 32 Vermont, 372. 6 Smith V. Chapman, ti Porter, 365. See Cherry v. Hooper, 7 Jones, 82. See Blair v. Rhodes, 5 Alabama, 648. i'^ Louderman v. Wilson, 2 Harris «& 7 Weil V. Tyler, 38 Missouri, 545 ; 43 Johnson, 379. Ibid. 581. [467] § 551 garnishee's liability as a debtor. [chap. XXV. it has been decided that the maker of a note payable in horses} or in (j/oods,'^ could be held as garnishee. This unusual decision, however, rests upon an express statutory provision, authorizing one who was, when served with process, " bound to deliver to the defendant, at a then future day, any specific article or articles whatsoever, other than money," to be declared garnishee of the defendant, and permitting him to deliver the specific articles to the sheriff, when execution should be issued against the defend- ant. And in Iowa it was held, that judgment might be rendered against a garnishee on account of a debt payable "in merchan- dise or trade ; " but that the judgment should be a conditional one, for the amount of the garnishee's debt, but to be discharged in merchandise, at a fair value, to be placed at the disposal of the sheriff ; on failure whereof the judgment, on motion, to become absolute, for which a general execution could issue.^ § 551. The debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must moreover be absolutely payable, at present or in future, and not dependent on any contingency. If the contract between the parties be of such a nature that it is uncertain and contingent whether any thing will ever be due in virtue of it, it will not give rise to such a credit as may be attached ; for that cannot properly be called a debt, which is not certainly and at all events payable, either at the present or some future period.* Therefore, where an attempt was made to attach, by garnishment of a ship-owner, the wages of a sailor employed on his ship, then at sea, and which had not arrived at any port of unlading, as it was uncertain whether the ship ever would arrive, and, therefore, whether any thing would ever become due to the defendant, it could not be called a debt, and the garnishee was therefore not chargeable;^ and this though the vessel had arrived just outside of the harbor to which she was bound, and was, by grounding, prevented from entering it.^ So, where there was a contract between the shipper of a cargo 1 Corastock V. Farnum, 2 Mass. 96. Wood v. Buxton, 108 Mass. 102; Maduel 2 Clark V. King, 2 Mass. 524. v. Mousseaux, 29 Louisiana Annual, 228; 3 Stadler f. Parmlee, 14 Iowa, 175. and tlie subsequent cases in this section. 4 Cushing's Trustee Process, 37 ; Rob- 5 Wentwortli v, Whittemore, 1 Mass. erts V. Drinkard, 3 Metcalfe (Ky.), 309; 471. Russell V. Clingan, 33 Mississippi, 535 ; « Taber v. Nye, 12 Pick. 105. Bishop v. Young, 17 Wisconsin, 46 ; [468] CHAP. XXV.] GENERAL VIEWS. § 551 and the owner of the ship, that the latter should receive a share of the profits arising on the cargo ; and, before the completion of the voyage, the shipper was summoned as garnishee of the owner; the court, regarding it as contingent whether the ship would successfully terminate the voyage, or if so, whether there would be any profits on the cargo, considered that there was no debt capable of attachment.^ So, where the garnishee had received from the defendants a bill of exchange, and gave a receipt there- for, promising to account to the defendants for the proceeds of the bill when received ; and before the payment of the bill he was garnished ; it was held, that, as it was contingent whether the bill would ever be paid, he could not be charged.^ So, where one, acting for himself and as agent of others, left a part of a cargo, shipped on a vessel of which he was master, and in which he and the defendants were jointly interested, with merchants abroad, to be sold on his account, and the proceeds to be subject to his order, and took the receipt of the merchants to that effect ; and while the goods were in this situation, he was summoned as garnishee of the other parties to whom jointly with him the goods belonged ; it was decided, that the credit was a contingent one, and therefore not attachable.^ So, where a lessee, who cove- nanted to pay rent quarterly, was summoned as garnishee of the lessor, he was held only for such quarters' rent as were due when he was summoned ; all beyond that being considered contingent and uncertain.* So, where one received a bill of lading and an invoice of goods consigned to him, and, before the receipt of the goods, was garnished in a suit against the consignor, he was dis- charged, because it was contingent whether he would ever receive or accept the consignment.^ So, where the garnishee had em- ployed the defendant as a broker to make a purchase of a cargo of lemons and oranges, with an agreement that the defendant should have one-third part of the net profits upon a resale, and, at the time of the garnishment, the whole proceeds of the resale had not been received ; it was held uncertain and contingent whether there would, on closing the transaction, be any thing due the defendant, and the garnishee was discharged.^ So, wliere » Davis V. Ham, 3 Mass. 33. See Baltimore & Ohio R. R. Co. v. Galla- 2 Frothingham v. Haley, 3 Mass. 68. hue, 14 Gratton, 563 ; Strauss v. Railroad See Hancock v. Colyer, 09 'ibid. 187. Co., 7 West Virginia, 368. 3 Willard v. Sheafe, 4 Mass. 235. ^ Grant v. Shaw, 16 Mass. 341. * Wood V. Partridge, 11 Mass. 488. ^ Williams i;. Marston, 3 Pick. 65. [469] § 551 GAKNISHEE's liability as a debtor. [chap. XXV. a garnishee held real estate of the defendant under a promise to sell and pa}^ over the proceeds, it Avas held, that such a promise to pay over money was but an executory contract, and that there might he several contingencies, without the fault of the gar- nishee, that would prevent his owing money ; and he was dis- charged.^ So, where a contract existed between the garnishee and the defendant, by which the defendant was to be employed by the garnishee in a manufactory, for a salary, and was to de- posit with the garnishee I^SOO to indemnify him against loss in the business, and, upon the dissolution of the contract, so much of the sum deposited as should not be required to indemnify the garnishee against loss was to be repaid to the defendant ; it was held to be uncertain and contingent, when the garnishee was summoned, whether the defendant would ever be entitled to re- cover the 1300 deposited, and that, therefore, the garnishee was not liable.^ So, where a testator bequeathed to his wife " the use of thirty shares in the Oxford Bank, said shares, at her de- cease, to be equally divided between his heirs ; " and died, leaving several children, and his executor was summoned as garnishee of the husband of one of them ; it was held, that the reversionary interest of any one of the children in these shares was contingent, and consequently not liable to be attached in the hands of the executor.^ So, where the garnishee disclosed that the defendants, being indebted to him, had caused certain of their goods to be insured, and the policy required payment, in case of a loss, to be made to him, and that the goods were destroyed by fire, and before proof of the loss was made he v^^as garnished ; it was con- sidered that his liability to the defendants was contingent, and he was discharged.* So, 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 fixed times in each year during his father's life ; he could not be charged as garnishee of the father for any thing not actually payable at the time when he was garnished ; all future payments being contingent, depending on the continuance of the father's life.^ So, where a note was 1 Guild V. Holbrook, 11 Pick. 101. wliere the contract was, that the gar- 2 Faulkner v. Waters, 11 Pick. 473. nishee should pay the defendant $45 an- 3 Rich V. Waters, 22 Pick. 563. See nually so long as the defendant should Clement i;. Clement, 19 New Hamp. 460. live, "and at that rate for any part of a * Meachamy. ]VIcCorbitt,2 Metcalf,352. year," it was held that the garnishee * Say ward v. Drew, 6 Maine, 263. In could be charged for the proportion of that Sabin i'. Cooper, 15 Gray, 532, however, sum due at the time of the garnishment. [470] CHAP. XXV.] GENERAL VIEWS. § 552 executed, payable on a contingency, and before it became payable absolutely the maker was summoned as garnishee of the payee ; it was held, that the contingency not having happened upon which it would become absolutely due, he could not be charged.^ So, where a consignee who had sold goods upon a credit, and guaranteed the sale, was summoned as garnishee of the consignor, before the expiration of the credit, it was considered that his undertaking was collateral and contingent, and that he could not be charged.^ So, where an insurance company was garnished in respect of a policy it had issued on the defendant's goods, which had been destroyed by fire ; which policy provided that in case of loss it should be optional with the company to replace the articles lost or damaged with others of the same kind and quality, or to take the goods at their appraised value, giving notice of its intention so to do within thirty days after having received the preliminary proofs of loss ; and the garnishment took place before any proof of loss, and when no election had been made by the company ; and under the law a garnishee could be charged only for what he owed when garnished ; it was held, that it was con- tingent and uncertain whether any thing would become due in money from the company to the defendant; and that the com- pany therefore could not be charged.^ § 552. But while the proposition that a debt not actually and at all events payable, but depending on a contingency, cannot be attached, is sufficiently simple, the application of it to particular cases which raise the question of contingent or not, is not always of easy solution. " Thus much, however," in the language of the Supreme Court of Massachusetts, " may be considered as clear, that the contingency must affect the property itself, or the debt which is supposed to exist, and not merely the title to the property in the possession of the trustee, or his liability on a contract which he has actually made, but the force or effect of which is in litigation. Examples showing the distinction may be taken from the cases decided. Thus the wages of a sailor on board a vessel which has not arrived, are not liable to the process, 1 Burke v. Whitcomb, 13 Vermont, » Martz v. Detroit F. & M. Ins. Co., 421. 28 Michigan, 201. 2 Tucker r. Clisby, 12 Pick. 22. See Bates V. New Orleans, &c., II. R. Co., 4 Abbott Pract. 72. [471] § 552 garnishee's liability as a debtor. [chap. XXV. because whether due or not depends on the arrival of the vessel.^ So, shippers of a cargo, under contract with the owner of the ship tliat he shall have a share of the net profits arising on the cargo, are not liable as trustees until the termination of the voy- age, as it is altogetlier contingent whether any thing will ever be due.2 There are many other cases of a similar character, but these two are sufficiently distinct to show what is intended in the decisions by the term contingent^ that is, an uncertainty whether any thing will ever come into the hands of the trustee, or whether he will ever be indebted ; the uncertainty arising from the contract, express or implied, between the debtor and the trustee. This principle has never been applied to a case where proj^erty is actually in the possession of the trustee claimed by the debtor, his right to it being in controversy, nor to demands against the trustee himself in the nature of a debt due tg the de- fendant, which, however, may be in dispute between them. In such cases the process is considered as attaching, and is postponed until a liability to the debtor is ascertained." ^ Therefore, where the garnishee answered that he had a sum of money in his hands, the right to which was contested between the defendant and other parties, and had been submitted to referees, the court held, that here was no contingency as to the property but merely as to the title, and that such contingency did not discharge the garnishee ; and that the proceedings might be postponed until it should be ascertained to which party the money belonged.^ So, where a garnishee has purchased certain property of the defendant, under a contract to pay for the same within a stipulated time, unless within that time he should elect to reconvey the property ; and, before the expiration of the time, and before he had elected to reconvey the property, he was sum- moned as garnishee of the defendant ; and' objection was made to his being charged, on the ground that his liability depended on a contingency, which had not happened when he was gar- nished ; it was held, that the case was not one of contingency such as to exempt the garnishee from liability.^ So, where a 1 Wentworth v. Whittemore, 1 Mass. * Thorndike v. DeWolf, 6 Pick. 120. 471. 5 Smith V. Cahoon, 37 Maine, 281. '■^ Davis V. Ham, 3 Mass. 83 ; Cutter v. The following are the views of the Perkins, 47 Maine, 557. court : " At the time of the service of ^ Thorndike v. DeWolf, 6 Pick. 120; the writ, P. (the garnishee) held in his Dwinel t". Stone, 30 Maine, 384; Downer hands the consideration of his contract V. Curtis, 25 Vermont, 650. with the defendant. By that contract [472J CHAP. XXV.] GENERAL VIEWS. § 553 contractor had done work, the payment for which was, by the terms of the contract, to be made on the estimate and certificate of an engineer ; and there was nothing further to be done by the contractor to entitle him to be paid ; it was held, that the fact that the engineer's estimate and certificate had yet to be made, was not a contingency which prevented the party for whom the work was done from being charged as garnishee of the con- tra ctor.^ § 553. As the attaching plaintiff can acquire no other or greater rights against the garnishee than the defendant has, it follows that, though the garnishee be indebted to the defendant, yet if there be any thing to be done by the latter as a condition prece- dent to his recovering his debt in an action against the garnishee, the plaintiff cannot obtain judgment against the garnishee with- out performing the condition. Thus, where a railroad company was summoned as garnishee of one who had contracted to do work on its road, and it appeared that the contract under which the work was done provided that the contractor should not re- ceive the amount of the final estimate of his work, until he should release, under seal, all claims or demands upon the com- pany arising out of the contract ; and at the time of the garnish- ment he had not executed such a release ; it was held, that the company could not be charged as garnishee."^ So, where an executor was garnished on account of a legacy bequeathed to the defendant, which the defendant could not have recovered without giving the executor a refunding bond; the executor he had his election to restore the prop- were in the hands of the supposed trustee erty purchased, within a time not then at the time he was served witli the expired, and thereby discharge his obli- process. In this case it was otherwise, gations to pay the stipulated price in The right to decide in which of the two money. He had either goods or credits modes provided he would fulfil his agree- in his hands. It was not uncertain, ment, did not leave his liability in any whether he had received absolutely the degree contingent, and he cannot with consideration of his contract, nor whether propriety contend that he was not trustee, he was absolutely bound to fulfil that He had the power to signify his election contract, by a return of the property re- to return the property, in which case he ceived, or pay its agreed equivalent ; would hold the property subject to the but the manner in which he should dis- trustee process, in the same manner that charge it was dependent on his choice, he would have done, had he been bound This is not the contingency referred to absolutely to return the property within in the statute cited for the trustee. And the time specified in the contract." in the cases relied upon in his belialf, the * Ware u. Gowen, G5 Maine, 534. facts were such as to leave it uncertain, ^ Baltimore & Ohio R. R. Co. v. Mc- whether any goods, effects*, or credits Cullough, 12 Grattan, 595. [473] § 554 garnishee's liability as a debtor. [chap. XXV. could not be charged as garnishee until the plaintiff indemnified him.i So, where a party contracted to perform a specified amount of labor, and the performance thereof was, by the terms of the contract, a condition precedent to the right to recover pay therefor, and he voluntarily abandoned the work before it was completed, without fault upon the other side ; it was held, that he was not entitled to recover a pro rata compensation for the amount of labor performed by him ; and that the party for whom the work was done could not be charged as his garnishee in respect thereof.^ § 553 a. It is not sufficient, to charge a garnishee, to show that he owes something to the defendant, but the amount owing must be shown ; otherwise the proper foundation for a judgment against him is not laid.^ § 554. The further consideration of the liability of a garnishee, in respect of indebtedness to the defendant, will be prosecuted in the succeeding chapters under the following heads : I. The garnishee's liability, as affected by the time when his debt to the defendant is payable. II. As affected by his having co-debtors, and by the number of the defendants, and the number of his creditors. III. His liability, as a party to a promissory note. IV. His liability, as affected by pre-existing contracts with the defendant or third persons. V. As affected by a fraudulent attempt by the defendant to defeat the payment of his debts. VI. As affected by an equitable assignment of the debt. VII. As affected by the commencement, pendency, and com- pletion of legal proceedings against him, by the defendant, for the recovery of the debt. 1 Ross V. McKinny, 2 Rawle, 227. » Marks v. Reinberg, 16 Louisiana 2 Kettle V. Harvey, 21 Vermont, 301. Annual, 348. See Poor v. Colburn, 57 See Otis v. Ford, 54 Maine, 104. Penn. State, 415. [474] CHAP. XXVI.] garnishee's LIABILITY AS TO TIME. § 556 CHAPTER XXVI. THE garnishee's LIABILITY, AS AFFECTED BY THE TIME WHEN HIS DEBT TO THE DEFENDANT IS PAYABLE. § 555. Though the doctrine is well settled, that where it is contingent whether the garnishee will ever owe the defendant money, he cannot be made liable, it by no means follows, that where there is a present debt, payable in the future, the same ex- emption exists. Where a system of credit is so extensively es- tablished as in this country, it would greatly impede the collection of debts, if no credits of a defendant could be reached but those actually due and payable at the time of the garnishment. Hence, in some States, it has been considered proper to provide by ex- press enactment for the attachment of debts not falling due until after the service of the writ ; though on general principles such provision would seem to be unnecessary, since the almost uni- form current of decision has been in favor of the operation of the garnishment in such cases. § 556. In Tennessee, it has been held that a debt not due can- not be attached. In the case in which this decision was had, it appeared that the garnishee owed the defendant money, which was not due at the time of the garnishment, but became due be- tween that time and the filing of the answer, and was paid at maturity. The court said : " By the provisions of the act, the person is summoned to answer what he is indebted at the time of the summons. There is no equitable construction by which the court can feel authorized to go beyond the words of the act, to reach a case of indebtedness ; the act has been taken with strictness." ^ This is believed to be the only State in which this position is taken, and from the report of this case we are justified in supposing that the general principles bearing on the matter were not presented by counsel, or considered by the court. The 1 Childress v. Dickins, 8 Yerger, 113; McMinn v. Hall, 2 Tennessee, .328. [475] § 558 garnishee's liability as to time. [chap. XXVI. court say : " The person is summoned to answer what he is in- debted at the time of the summons ; " and, confounding indebt- edness with time of payment, they consider that, because the debt was not actually due and payable at the time the garnishee was summoned, it was no debt. They overlook the fact that the law everywhere recognizes the existence of dehitum in prcesenti^ solvendum in fttturo^ and that one who has engaged to pay an- other a sum of money at a future time is as much a debtor as he' whose time of payment has already passed. It is sufficient to say, that this decision is adverse to the entire adjudications else- where, in England and this country, and must be considered as overborne by the weight of authority, as well as by principle. § 557. Thus, by the custom of London, money due to a de- fendant from a garnishee, but not payable at the time of the garnishment, may be attached, and judgment may be rendered in respect thereof at once, but no execution shall issue till the time of payment arrives.^ The same doctrine has been announced in Maine,2 Massachusetts,^ Pennsylvania,* Maryland,^ North Car- olina,^ Alabama,'' Indiana,^ and Arkansas,^ and may be regarded as firmly established. And where the debt exists, but the time when it may become payable depends upon a notice to be given by the defendant to the garnishee, it may be attached, though no such notice have been given.^° § 558. A singular case occurred in Vermont, where one sum- moned as garnishee had given the defendant a promissory note, in which was embodied a clause in these words : " I am at my option about paying the principal of this note, while I pay the interest annually." The garnishee claimed that this clause ex- empted him from liability, under a statute which provided that one may be held liable as garnishee for " money due to the prin- cipal defendant, before it has become payable," but " shall not be compelled to pay it before the time appointed therefor by the 1 Priv. Lond. 261, 262. ^ Branch Bank v. Poe, 1 Alabama, 2 Sayward v. Drew, 6 Maine, 263. 396 ; Cottrell v. Varnum, 5 Ibid. 229. 8 Willard V. Slieafe, 4 Mass. 235. » King w. Vance, 46 Indiana, 246. * Walker v. Gibbs, 2 Dallas, 211; 1 ^ Dunnegan v. Byers, 17 Arkansas, Yeates, 255 ; Fulweller v. Hughes, 17 492. Penn. State, 440. ^^ Clapp v. Hancock Bank, 1 Allen, 5 Steuart v. West, 1 Harris & Johnson, 394 ; Nichols v. Scofield, 2 Rhode Island, 536. 123. ® Peace v. Jones, 3 Murphey, 256. [476J CHAP. XXVI.] garnishee's LIABILITY AS TO TIME. § 559 contract." The court, however, very properly held otherwise, and charged the garnishee.^ § 559. But in order to attach a debt payable in futuro, it must be a certain debt, which will become payable upon the lapse of time, and not a contingent liability, which may become a debt or not, on the performance of other acts, or the happening of some uncertain event. Thus, where it was sought to attach the wages of an employee in a factory, and it appeared that when he became such he signed a written agreement that the company might pay his wages at such times and in such parts as it might from time to time elect ; that he would continue in its employment, unless the contract should be terminated by mutual assent, until the expiration of thirty days' notice of his intention to leave ; and that if he should leave without first giving and " working out " such notice, all wages should be liable to forfeiture to the company ; and that this contract remained in force, and no notice had been given by the defendant of his intention to leave ; it was held, that it was not a case of debitum in prcesenti, solvendum infuturo; that nothing was due to the defendant until he should give and " work out " the notice ; and that it would make no difference that the wages were reckoned by the day, and that, as a matter of accommodation and favor, the practice of the com- pany had been to make advances or payments on account at reg- ular periods.^ So, where one contracted to do certain work for a city, by a certain day, for which he was to receive a stipulated sum ; and before the arrival of the day of completion, the city was summoned as his garnishee ; it was held, that the contract was entire and not apportionable ; that the city became liable for the work when it was completed, and not before ; and that no debt existed at the time of the garnishment.^ So, where the salary of a minister was payable quarterly, with an agreement that, if he entered on a quarter and did not complete it, nothing should be due for such service ; and the minister, in the middle of a quarter, tendered his resignation, which was accepted ; and the parish afterwards voted to pay him pro rata for the time of his service, after the commencement of the quarter ; it was held, 1 Fay V. Smith, 25 Vermont, 610. » Coburn v. Hartford, 38 Conn. 290. 2 Potter V. Cain, 117 Mass. 238. [477] § 559 garnishee's liability as to time. [chap. XXVI. that the parish was not liable, as garnishee of the minister, on a process served after the resignation and before the passing of the vote ; because when the process was served there was no debt, and the subseqnent vote could not relate back so as to make a debt at that time.^ 1 Wyman v. Ilichborn, 6 Gushing, 264. See Baltimore & Ohio R. R. Co. v. Gallahue, 14 Grattan, 663. [478] CHAP. XXVII.] GABNISHEE's LIABILITY, ETC. § 561 CHAPTER XXVII. 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. I. His liaUlity, as affected hy Us having Co-debtors. Where several persons are jointly and severally liable for a debt, any one of them may be garnished, and subjected to a judgment for the whole amount of the debt, in the same manner that he might be sued by the defendant without his co-debtor being joined in the action.^ But it is unadvisable in any case to garnish one of several joint and several debtors, without joining the others, if practicable ; for a payment by one not garnished will certainly discharge the liability of the garnishee, whether made before or after the garnishment. Thus, where it appeared that the gar- nishee and another had executed a note to the defendant, prom- ising to deliver to him at a certain time five tons of hay, and, before the note became due, one of the makers was garnished, and afterwards, when it became due, the other maker paid it, the court held this payment to be a discharge of the garnishee.^ § 561. Where two or more persons are jointly liable for a debt, if part of them only are garnished, they may, in Massachusetts, take advantage of the non-joinder in abatement, but the process will not, because of the non-joinder, be considered wholly void.^ In New Hampsiiire, however, where one was summoned as gar- nishee, and it appeared from liis answer that he was not indebted to the defendant in his individual capacity, but as a partner in a 1 Travis v. Tartt, 8 Alabama, 574 ; advantage of the non-joinder in the early Speak V. Klnsey, 17 Texas, 301 ; Ma- stage of the proceedings. After his fail- comber V. Wright, 35 Maine, 156. ure to answer, and the issue of a sdre ^ Jevvett V. Bacon, 6 Mass. 60. See facias against him, consequent on such Robinson v. Hall, 3 Metcalf, 301 ; Sabin failure, he cannot set up this defence. V. Cooper, 15 Gray, 532. Hoyt v. Robinson, 10 Gray, 371 ; Sabin •* Hathaway v. Russell, 16 Mass. 47-3. v. Cooper, 15 Ibid. 532. But in such case the garnishee must take [479] § 561 G.UINISHEE's liability [chap. XXVII. firm, the other members of which were not joined with him in the writ, it was decided that, because of the non-joinder of the other partner, tlie garnishee could not be charged.^ And it was so hehl in Vermont,^ lowa,^ Georgia,^ and the District of Cohimbia.^ In Pennsylvania, however, while it is admitted that in common suits between creditors and debtors, the latter may plead in abatement that a partner was not named in tlie writ, yet that the reason of the plea in those cases does not apply to attachments; and such a plea by a garnishee was disregarded.^ In Connecti- cut the following case occurred: A. & B., a firm in New York, and C, D., and E., a firm in Connecticut, entered into a joint real estate speculation, the net profits of which were to be equally divided between the two firms. The title to the land was con- veyed to B., of the former firm, and C, of the latter, as agents of their respective firms ; and all transfers and conveyances thereof were made by them ; and C. was the treasurer of the speculation, and received and paid out all moneys connected therewith. C, on behalf of the members of both firms, con- tracted with M. for the erection of a building ; but M. was not at any time informed that A. and B. were interested in the spec- ulation, or in the contract with him. He performed the work, and there became due him therefor, $2,030. Thereafter, suits by attachment were brought by several parties against M., in which all the partners in the two firms, except A., were garnished, and judgments having been obtained therein, and executions issued, and demand made upon C, he paid the amounts of the judg- ments. Afterwards H. brought suit against M., and garnished all the members of both firms, and upon the judgment therein obtained C. paid, as garnishee, $121.85, which was not sufiicient to satisfy H.'s judgment. Thereupon H. claimed his right to a further payment from the members of the firm, which they resisted, claiming that the previous payments made by C, un- der the prior judgments, were valid, and constituted pro tanto a discharge of their liability. H. contended that the non-joinder of A. as garnishee in those suits might have been set up by the garnishees as a defence, and therefore must be available in H.'s 1 Rix V. Elliott, 1 New Hanip. 184 ; » Wilson v. Albright, 2 G. Greene, 125. Hudson V. Hunt, 5 Ibid. 538; Atkins v. * Hoskins y. Johnson, 24 Georgia, 625. Prescott, 10 Ibid. 120. ^ EUicott v. Smith, 2 Cranch C. C. •^ Pettes V. Spalding, 21 Vermont, 66. 643. See Wellover i;. Soule, 30 Michigan, 481. *> Brealsford v. Meade, 1 Yeates, 488. [480] CHAP. XXVII.] Vi'lTB. CO-DEBTORS, ETC. § 564 favor against the validity of the garnishments in which A.'s name was omitted. This position was not sustained, and the payments made by C. were hekl a valid defence against any further liability of the members of the firms as garnishees.^ § 562. But where the garnishees were partners in a firm, part of the members of which resided in another State, and the names of all the members were contained in the writ, it was held that, as, if an action had been brought against them, a service on those within the jurisdiction would be sufficient, so the garnishment of the resident partners was sufiicient to hold the funds of the de- fendant in the hands of the firm.^ § 563. And in all such cases, as well where the co-debtors not summoned reside within the State, and the garnishees do not object on that account to answer,^ as where those not summoned reside out of the State,* if it appear by the answers that time is wanted to ascertain the condition of the funds, or the liability of any of the other partners, who are not summoned, on account of any acceptance or engagement they have entered into, or of any suit brought against them, the process will be stayed, until full information can be obtained.^ § 564. There is, however, a case which constitutes an exception to the rule that resident partners may be garnished and the funds in the hands of the firm thereby attached, though other members of the firm reside in another State. The exception is, where part of the firm reside in this country and part in a foreign country. There, it has been decided that the resident partners cannot be held as garnishees. The -question arose on the following state of facts : P., a resident of Boston, and G., a resident of Havana, were general partners under the firm of P. & G., having a house established and doing business in the latter city. B., the defend- ant, deposited in the hands of G., at Havana, a sum of money, taking a receipt therefor in the name of P. & G. Afterwards P. was summoned in Boston as garnishee of B., and when he was 1 Hawley v. Atherton, 39 Conn. 309. ^ Hatliaway v. Russell, 16 :\rass. 473. ■i Parker v. Danforth, 16 Mass. 299 ; * Parker v. Danforth, 16 Mass. 299. Atkins V. Prescott, 10 New llamp. 120; ^ Parker v. Danforth, 16 Mass. 299; Warner v. Perkins, 8 Cusiiing, 518; Peck Cushing's Trustee Process, § 92. V. Barnum, 24 Vermont, 75. 31 [481] § 565 garnishee's liability [chap, xxvii. summoned the money still remained in the hands of G., at Ha- vana. The court, upon the following grounds, decided that P. could not be charged as garnishee : " The debt from the house to B. was contracted in Havana, and was there to be accounted for according to the terms of the receipt ; and it would be attended with manifest inconvenience to commercial men if, when they have received property on credit in one country, they could be held accountable to a stranger in another ; when the terms upon which they received it might be satisfied abroad, without a possi- bility of showing it here. " Besides, their creditor abroad may have the means of com- pelling payment in the country where the contract was made ; and it is altogether unknown to us, whether a judgment of this court, founded on this process, would be respected by a foreign tribunal, who might have perfect evidence of the existence of the debt, without any satisfactory proof that it had ever been discharged. " There is also a diflficulty in considering one partner of a house as the trustee, when the other partner abroad may, without his knowledge, have discharged the debt, or come under some lia- bility which would give the house an equitable lien upon it. Debtors, who are copartners here, must all be summoned and made parties to the suit. It is true, this cannot be done where some of them have become domiciled abroad. But this difficulty will suggest doubts, whether a house so circumstanced can be lawfully made the subjects of this process. At any rate, when the debt is contracted abroad, with a view to the agency of the foreign partner, or an expectation that it will be paid or negoti- ated by him, we think the partner at home cannot be charged as trustee." ^ § 564 a. Where a garnishment proceeding is instituted against a firm, the names of the individual members of it must be set out in the process. A proceeding against " the firm of " A., B., & Co." charges no member of it.^ § 565. Where several persons, members of a partnership, are summoned as garnishees, and one of them answers, admitting a debt due from the firm to the defendant, it is held, in Mississippi, I Kidder v. Packard, 13 Mass. 80. ^ Reid v. McLeod, 20 Alabama, 576. [482] CHAP. XXYIL] with CO-DEBTORS, ETC. § 567 that his answer will authorize a judgment against all the part- ners.^ § 565 a. Where several persons are summoned under the same writ, as garnishees of the same defendant, and they are not jointly- indebted to the latter, neither one can defend against his liability by showing that he was not jointly indebted with the other gar- nishees: the liability of each must be determined by his individual relations to the defendant.^ § 566. II. Si% liability as affected hy the number of the Defend- ants^ and the number of his Creditors. Where there are several defendants, the property of each is of course liable for the whole debt. In such case, if it appear that the garnishee is indebted to one or more of the defendants, though not to all, he will be charged.^ But where a garnishee is indebted to several persons jointly, an important, and, in one of its aspects, a vexed, ques- tion arises, whether, in respect of that indebtedness, he can be charged, as garnishee of part of his creditors. This question will be considered under two heads : I. In relation to Partnerships ; and II. In relation to other cases of joint creditors of the garnishee. § 567. I. Partnerships. The attachment of a debt due to a copartnership, in an action against one of the partners, is justly distinguishable from the seizure on attachment or execution of tangible effects of the firm for the same purpose. Hence we find the Suj)reme Court of Alabama holding, in the same case, that partnership property may be sold to pay the debt of one partner, but that a debt due to a firm cannot be taken by gar- nishment for that purpose. The reason assigned is, that, in the case of a sale, the property is not removed, and cannot be appro- priated until all liens upon it, growing out of or relating to the partnership, are discharged ; while in the other case, the judg- ment against the garnishee, if acquiesced in, changes the right of property, and devests the copartner's title to the property at- tached; which cannot be done so long as the partnership accounts remain unsettled, or its debts unpaid.* Much force is given to 1 Anderson v. Wanzer, 5 Howard Stone v. Dean, 5 New Hamp. 502; Par- (Mi.), 587. ker v. Guillow, 10 Ibid. 103; Caignett v. 2 Curry v. Woodward, 53 Alabama, Gilbaud, 2 Yeates, 35 ; Locket v. Child, 371. 11 Alabama, 640. 3 Thompson v. Taylor, 13 Maine, 420; * Winston v. Ewing, 1 Alabama, 129. [4«3] § 509 garnishee's liability [chap, xxvii. this reason, when it is remembered that garnishment is essentially a legal proceeding, and not adapted for the ascertainment and settlement of equitable rights between the garnishee and the defendant ; and that a court of law has no power to impound the debt, until, b}^ an adjustment of all the partnership affairs, it shall appear whether the defendant has any and what interest in the general surplus, or in the particular debt so impounded.^ § 568. In Massachusetts, this question came up at an early day, and the court, while deciding that the garnishee could not be charged, intimated that if a partner of the firm were summoned, and disclosed that the defendant had an interest in the partner- ship effects after all the partnership debts were paid, the garnishee might be held.^ There are, however, great and apparently insu- perable difficulties in the way of snch an investigation, which will immediately occur to the legal mind, and demonstrate its impracticability. The same point came up before Justice Story, on the circuit, in a case where, in a suit against G. & G., the gar- nishee answered that he was indebted to G. & L., one of the defendants being a member of both firms. The court, in deciding against the liability of the garnishee, observed : " In order to adjudge the trustee responsible in this suit, it must be decided, that the funds of one partnership may be applied to the payment of the debts of another partnership, upon the mere proof that the principal debtor has an interest in each firm. If this be cor- rect, it will follow that a separate creditor of one partner will have greater equitable, as well as legal rights, than the partner himself has. The general rule undoubtedly is, that the interest of each partner in the partnership funds is only what remains after the partnership accounts are taken ; and unless upon such an account the partner be a creditor of the fund, he is entitled to nothing. And if the partnership be insolvent, the same effect follows." 3 § 569. In Connecticut, this subject was elaborately and ably considered, in a case where there were three members of a firm to which the garnishee was indebted, and he was garnished in a 1 Johnson v. King, G Humphreys, 233. Waltham, 18 Pick. 451 ; Bulfinch v. 2 Fisk V. Herrick, 6 Mass. 271; Up- Winchenbach, 3 Allen, 161. ham V. Naylor, 9 Ibid. 490 ; Hawes v. '■> Lyndon v. Gorham, 1 Gallison, 367. See Upham v. Naylor, 9 Mass. 490. [484] CHAP. XXVn.] WITH CO-DEBTOES, ETC. § 569 suit against one of them. There the court said : " The creditor can, by a foreign attachment, take nothing but what the abscond- ing debtor was entitled to ; and the property of one man ought not to be taken to pay the debt of another. But the rule claimed by the plaintiffs would violate both these principles. It is well known, that in partnerships the effects do not usually belong to the partners equally, in proportion to the number. Sometimes, one will advance the capital, which is to be returned, while the other is to transact the business, and the profits only are to be shared between them. The effects might be wanted, not only to pay the partnership debts, but, on a settlement of the accounts, the partner in the execution might be a debtor of the partnership. If, then, we consider them tenants in common, and permit a cred- itor to sell one-half to pay the separate debt of one partner, we shall, in many instances, suffer the property of one man to be taken to pay the debts of another ; and give to a separate cred- itor of a partner a right over the effects of a partnership, which such partner could not exercise ; and if the purchaser should be allowed to take possession of the effects, he might dissolve or destroy the partnership. " It may be asked, on what ground could the judgment in this case be rendered for 07ie-third of the debt due from the defend- ants to the partnership, of which the absconding debtor was one ? There was no evidence respecting the state of the partnership concerns ; what capital each partner advanced ; what each owned ; and whether the partnership was solvent. Suppose the whole debt due from the garnishee should be wanted to pay the partnership debts; or that the defendant should be found a debtor, on settling his accounts ; then the judgment could not be right. While the interest of the defendant was a matter of uncertainty, how could a judgment be rendered for a sum certain ? " It is, however, insisted that the garnishee is bound to state the accounts of the defendant with the partnership, and ascertain the balance due to the defendant. But this would be to require an impossibility ; for he has no control of their books, and no possible legal mode of compelling a settlement of their accounts. " It is further said, if the plaintiffs have recovered more than the proportion of the defendant in this debt, and it should be wanted for the payment of partnership debts, the other partners [485] § 570 garnishee's liability [chap, xxvii. may call them to account, and recover back such money. At this rate, a judgment may be rendered in favor of a man for a sum certain, with a liability to refund the whole, or a part of it, on some contingency. It is sufficient to state the proposition, to show the absurdity of it. What right can a court have to say, that a certain part of a debt due to a partnership may be taken to pay the private debt of a partner, in a suit where the partners are not parties ; and then, if wanted to pay the debts of the partnership, to oblige them to resort to the creditor ? " But it further appears to me, from the nature of partner- ships, that one partner cannot have a separate right in any par- ticular debt or article of property, belonging to the partnership, liable to his individual debt; but all the effects are a joint interest ; and each partner can have a separate interest only in his share upon the winding up and settlement of the partnership concerns." ^ § 570. The position taken in those decisions is supported by the courts of New Hampshire,^ Vermont,^ New York,* Louisiana,^ Mississippi,^ Tennessee," Ohio,^ and Missouri.^ In Maine,^" Pennsylvania,!! Maryland,!^ ^nd South Carolina,!^ the contrary doctrine prevails ; but in the reported cases in those States we look in vain for any substantial foundation of reason or expedi- ency upon which it can rest, or for any views calculated to shake confidence in the conclusion, that partnership credits can in no case be taken, by garnishment, to pay the individual debt of one member of a firm.^* 1 Church V. Knox, 2 Conn. 514. See Missouri, 467 ; Sheedy v. Second Nat. the able concurring opinion of Brain- Bank, 62 Ibid. 17. AED^ J. 1" Whitney v. Munroe, 19 Maine, 42 ; 'i Atkins V. Prescott, 10 New Hamp. Thompson v. Lewis, 34 Ibid. 167 ; Smith 120. V. Cahoon, 37 Ibid. 281 ; Burnell v. Weld, 3 Towne v. Leach, 32 Vermont, 747. 50 Ibid. 423 ; Parker v. Wright, 66 Ibid. 4 Barry v. Fisher, 39 Howard Pract. 392. 521. 11 McCarty v. Emlen, 2 Dallas, 277; 5 Smith V. McMicken, 3 Louisiana 2 Yeates, 100 ; Lewis v. Paine, 1 Legal Annual, 319 ; Thomas v. Lusk, 13 Ibid. Gazette R. 508. 277. 1- Wallace v. Patterson, 2 Harris & Mc- t> Mobley v. Lonbat, 7 Howard (Mi.), Henry, 463. 318 ; Williams v. Gage, 40 Mississippi, '^ Schatzill v. Bolton, 2 McCord, 478 ; 777.' Chatzel v. Bolton, 3 Ibid. 33. ^ Johnson v. King, 6 Humphreys, 233. " The Supreme Court of California, 8 Myers v. Smith, 29 Ohio State, 120. while holding that, under the laws of 3 Kingsley v. Missouri Fire Co., 14 that State, partnership credits may be [486] CHAP. XXVir.] WITH CO-DEBTOES, ETC. § 572 § 571. But when the partnership has been dissolved by the death of one or more partners, leaving one survivor, it is con- 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 Gases of Joint Creditors of the G-arnishee. 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, may sever a con- tract, so as to subject the debtor to the liability 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 prnicipal 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 attached for the debt of one of the part- something coming to the partner against ners, yet decided that tliey cannot be whom tiie attachment is laid. Robinson subjected to the payment of his debt, t". Tevis, 38 California, Cll. unless it appear that, upon a settlement ' Knox v. Schepler, 2 Hill (S. C), of the partnership affairs, there will be 595 ; Berry v. Harris, 22 Maryland, 30. [487] § 572 garnishee's liability [chap, xxvii. the expense of the suit, by allowing him to deduct it, as a charge upon the fund 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 ob- jection cannot prevail." ^ In Missouri, the same point Avas 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. On this point the court said : " This depends upon the question whether A. & B. are copartners ; if they are the objection is well taken, as was decided in the cases of Fisk v. Herrick, 6 Mass. 271, and Upham V. Naylor, 9 Mass. 490. These cases, however, relate to co- partnerships, properly so called, and not to mere tenancies in common or joint ownerships of personal property ; and the reason is that no one partner can have any separate interest in a copartnership debt, if he himself is indebted to the copartnership to an amount which will absorb his proportion ; so that his share shall not be taken, until it shall be made to appear that it is free from the lien of the other partners. But it is not so with ten- ants in common of a ship, or persons jointly interested in a cargo, they not being partners, for they have no lien upon each other's share, and are not answerable for each other's debts. And this has been settled in several cases similar to the one before us. " Now what is the interest of B. in the funds in the hands of the garnishees ? A. & B. were the owners of a ship, and con- cerned together in a voyage. It is to be presumed that each fur- nished his share of the outward cargo. The ship brings home silks, which, by reason of A. & B. being ship-owners, become their property. They are tenants in common until the property is divided. When sold, they have the same interest in the pro- ceeds. Neither can claim more than his share on account of debts due from the other. They have no lien. The consequence is, that a creditor of either may attach a moiety, and, when sold 1 Whitney v. Munroe, 9 Maine, 42. 2 Miller v. Richardson, 1 Missouri, 310. [488] CHAP, xxvn.] WITH CO-DEBTOES, ETC. 572 by a factor, though he may discharge himself by payment to either, if they united in the deposit, he is nevertheless debtor to each, and is answerable to the creditor of each when the funds are attached in his hands." ^ 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 1 Thorndike v. DeWolf, 6 Pick. 120. In Hanson v. Davis, 19 New Hamp. 133, the Superior Court of New Hampshire take the contrary ground. A. was sum- moned as trustee of B., and disclosed tliat he had executed certain notes to B. & C, jointly, and that the payees were equally interested in them. The court said : " The question is, wliether A. can be charged as trustee of the defendant for any, and for what part of the notes. We are of opinion that he cannot be charged for any part. The notes are due to B. & C, jointly, neither owning any particular note or part of the debt. If a payment is made to one, it is for tlie benefit of both, and the money is the money of both. The trustee, it is plain, cannot be charged for the whole note; and if he were to be charged for one half, that does not sever the joint property, and that half still belongs as much to C. as to the defendant. And if, after being so charged, the trustee were to become unable to pay the balance, C. ouglit to lose but one half of that, and would be entitled to recover of the j)laintiff one half of what he had received ; that is, if the attaching creditor had no greater right than his debtor. A trustee cannot be charged where the interest of the principal is merely a contingent interest. Here if the principal debtor, B., die, the note survives to C, the other payee, and he alone can enforce payment of it. B.'s interest is, therefore, contingent, and may become altogether extinguislied. The rights of C, the other payee, are injuriously affected by this attachment. While this process is pending, how can C. sue for the residue, or enforce its pay- ment ? Must he wait until this suit is at an end, and then if the trustee is charged, as debtor of B., for one half of the notes, shall C. sue for the balance in his own name, or in the name of both ? On the theory of the plaintiff, the trustee is to be charged as the debtor of B., for one half of the notes. B., then, has no longer any interest in the residue of the note. Yet how is C. to control and col- lect it, and what prevents B. from receiv- ing it and giving a discharge ? Upon the whole, we do not see how, consist- ently with the rights of the payees of these notes, the trustee can be holden, and he must, therefore, be discharged." See French v. Rogers, 16 New Ilamp. 177 ; Fairchild v. Lampson, 37 Vermont, 407. 2 Hawes v. Waltham, 18 Pick. 451. [489] §572 garnishee's LIABILITY, ETC. [CHAP. XXVIL 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 the two jointly, without any thing further appeariyig. 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. [490] CHAP. XXVIII.] GARNISHEE AS PAKTY TO A NOTE. § 575 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 Hght, in some of its aspects, serious difficulties. 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. Unnegotiable 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 [491] § 577 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. of the garnishment.^ In such case the laches of the assignee occasions his loss. § 576. When the maker of an unnegotiahle note is thus gar- nished, if he have received notice of an assignment of the note, made before the garnishment, he should 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 styl- ing themselves assignees.^ And it matters not whether the in- formation 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 will 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 equity ; but it is none the less, in this proceeding, entitled to the protection of the courts ; which, with great uniformity, have 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 V. Nelson, 8 Blackford, 265 ; Com- Rich, 3 Ibid. 175 ; Cross v. Haldeman, 15 stock V. Farnum, 2 Mass. 96 ; Clark v. Arkansas, 200. King, Ibid. 524 ; Junction R. R. Co. v. 3 Stubblefield v. Hagerty, 1 Alabama, Cleneay, 13 Indiana, 161 ; Shetler v. 38 ; Smith v. Blatchford, 2 Indiana, 184. Thomas, 16 Ibid. 223. In Alabama no 4 Foster v. Walker, 2 Alabama, 177 ; notes are recognized as governed by the Wicks v. Branch Bank, 12 Ibid. 594. principles of the law merchant, but such ^ Oldham v. Ledbetter, 1 Howard as are made payable in bank. (Mi.), 43. [492] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE, § 578 sustained equitable assignments against attachment for the debts of the assignors.! § 578. 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 liabiHty 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 Maine.3 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 defendant 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 gar- nishee did not state the assignment as of his own knowledge ; but the court overruled the objection ; holding that if the gar- nishee answers fairly and makes a full disclosure, the facts which 1 See Chapters XXIV. and XXXI. * Newell v. Adams, I D. Chipman, •^Foster v. Sinkler, 4 Mass. 450; 340; Hutchins v. Hawley, 9 Vermont, Wood V. Partridge, 11 Ibid. 488. 295; Burke v. Whitcomb, 13 Ibid. 421. 3 McAllister v. Brooks, 22 Maine, 80. [493] § 580 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIIT. 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. ^ § 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 anszver, 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 assign- ment is of first importance. But where, as in some States, the assignment of a note is, per se operative and effectual, and no notice to the maker is required, how is the maker to be charged as gar- nishee of the i)ayee, without liability to a second payment to the assignee ? If, ignorant of any assignment, he, in his answer, ad- mit an indebtedness to the defendant, and judgment be rendered 1 Fay V. Sears, 111 Mass. 154. posed assignee to appear and establish 2 Colvin «;. Rich, 3 Porter, 175 ; Foster the genuineness of the assignment; in V. White, 9 Ibid. 221 ; Foster v. 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. 3 Smedes & Marshall, 291 ; Thompson v. Staaden, 24 Illinois, 820. In a later case, Shelby, Ibid. 296; Cadwalader v. Hart- however, it was there held, that no judg- ley, 17 Indiana, 520. In Illinois, it was at ment could be given against a garnishee, one time held, 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 tlie 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 anp- [494] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 581 against him, and afterwards an assignee of the note, under an assignment made before the attachment, claim its payment, can it be resisted ? Shall the assignee be prejudiced by a proceeding to which he was no party, and of which he was ignorant ? 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 necessity 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 which, 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 de- fence against the assignee, only in respect of matters which ex- isted prior to the assignment ; and led that court to the only safe conclusion, that such notes, as regards liability to attachment, must be regarded as on the same footing with negotiable paper.i § 581. The cases previously cited refer altogether to notes exe- cuted within the States where the decisions were made. A question of some interest is presented, wdiere 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 has 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 A. executed in Pennsylvania, and delivered to B., in New York, 1 St. Louis Perpetual Ins. Co. v. Co- 2 Baylies v. Houghton, 15 Vermont, hen, 9 Missouri, 421. See Speight v. 626. Brock, Freeman, 389. [495] § 583 GARNISHEE AS TARTY TO A NOTE. [CHAP. XXVIII. a promissoiy 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 was payable^ in Vermont, though by the law of Massachusetts he could not have been charged.^ § 582. II. Negotiable 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 appear affirmatively that, at the time of the garnishment, the defendant had a cause of action 1 Ludlow V. Bingham, 4 Dallas, 47. •* Emerson v. Partridge, 27 Ver- See Green v Gillett, 5 Day, 485. mont, 8. 2 Smith V. Blatchford, 2 Indiana, 184. [496] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 585 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 may 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 i Wetherill v. Flanagan, 2 Miles, 243 ; ney v. Ellis, 11 Smedes & Marshall, 348; Bridges v. North, 22 Georgia, 52; Allen Brown v. Slate, 7 Humphreys, 112 ; Davis V. Morgan, 1 Stewart, 9 ; Pressnall v. v. Pawlettc, 3 Wisconsin, 300 ; Wilson v. Mabry, 3 Porter, 105; Smith w. Chapman, Albright, 2 G. Greene, 125; Pierce v. 6 Ibid. 365; Mims v. Parker, 1 Alabama, Carleton, 12 Illinois, 358; People v. John- 421; Foster y. Walker, 2 Ibid. 177; For- son, 14 Ibid. 342; Ellicott ;;. Smith, 2 tune V. State Bank, 4 Ibid. 385 ; Connoley Cranch C. C. 643 ; ante, § 461 ; post, V. Cheeseborough, 21 Ibid. 166 ; Estill v. § 659. Goodloe, 6 Louisiana Annual, 122 ; Har- 32 [497] § 585 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. unless that bo 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. Presuni[)iions 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 lie 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 obligation is not to pay to any particular person, hut to the holder, at maturity, tvhoever 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 probability, holds the garnishee to a responsibility which he may have to meet again in an action by a hand 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 would oth- erwise be in, by requiring him to pay to the plaintiff money which he may, and probably will, afterwards be compelled to pay ao"ain 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. lloache, 49 Mississippi, 436. Higgins, 10 Ibid. 339. 2 Sheets v. Culver, 14 Louisiana, 449 ; [498] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 586 way ; and the mere liability to such second payment is sufficient to pbice 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 destroying 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 bond 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 bond 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^), 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 lias arbitrarily seized upon his property, vari- 1 Quarles v. Porter, 12 Missouri, 76 ; - Funkhouser v. How, 24 Missouri, Colcord V. Daggett, 18 Ibid. 557. 44 ; Diclcey v. Fox, Ibid. 217. [499] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIH. ous inquiries at once arise. Wh3s and by what authority, is the lethal 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 Avill, 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 Avith established principles of law, it is difficult to see in the pro- posed expedient any thing more than an unauthorized act of ju- dicial 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 be affirmatively sJioivn, that, before the rendition of the judgment, the note had become due, and tvas then still the j^roperty 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 tiie Pennsylvania, in Kieffer v. Eider, 18 judiciary. It seems to me to be the only Penn. State, 388, to impound the note, should one which can allow of the attachment be adopted. See post, § 588. [500] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 588 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- nishment, 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 before notice of the indorsement^ but could give in ev- idence any thing 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 him in an action against the payee.^ The same court subse- quently took stronger ground, in a case where negotiable notes 1 Stone V. Dean, 5 New Ilamp. 502. Rev. Statutes of New Hampshire, of Since the decisions in New Hampsiiire 1843, ch. 208, §§ 18, 19, and Amoskeag stated in the text, a statute lias been Man. Co. v. Gibbs, 8 Foster, 316. enacted in that State, which subjects the ^ Britton v. Preston, 9 Vermont, 257. maker of a negotiable note to be gar- ^ Ilinsdiil y. SaflTord, 11 Vermont, 309. nished in a suit against the payee, at any * Hinsdill v. Safford, 11 Vermont, 309 ; time before the note is transferred. See Little v. Hale, Ibid. 482. [501] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. had been executed, and were not yet due, and the maker was summoned as garnishee of the payee ; and said : " We ought not to hohl the maker of the notes liable, unless he could rely upon this jiulgment 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 pa^^ee, in order to hold the maker liable we must destroy the future negotiability of the notes, and thus j^ut 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 while 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 dictuin, 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 tlie maker, of the This decision was given in 1841, and in indorsement, to perfect liis riglit, and de- the same year tlie legislature of Vermont feat an attachment; and tliat informa- passed a statute subjecting all ne(jotiuhle tion of the fact of tlie indorsement, from jKtper to attachment, whether under or a mere stranger to the paper, is not suffi- over due, unless the same had not only cient. Peck v. Walton, 25 Vermont, 33. 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, he was held Kimball v. Gay, 16 Vermont, 131 ; Chase to be chargeable, although, by the law of V. Haughton, Ibid. 594 ; Barney v. Doug- Massachusetts, he could not have been, lass, Itt Ibid. 98. And it is there held, Emerson v. Partridge, 27 Vermont, 8. that the indorsee of a negotiable note [502] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 588 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 liis 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 holder, 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 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 ' Ludlow V. Bingham, 4 Dallas, 47. tion. It is certainly a very effectual 2 KieflFer v. Ehler, 18 Penn. State, method, where it can be applied before 388 ; Hill v. Kroft, 29 Ibid. 186 ; Day v. the actual transfer of the note, and, if Zimmerman, 08 Ibid. 72; Adams v. generally adopted, would do much toward Avery, 2 Pittsburgh, 77. The suggestion defeating many fraudulent transactions of impounding the note is an important that are covered by negotiable paper, one, and has not before met my observa- [508] § 588 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. 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 maturit}' ; 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- 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 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 gar- nishment. " In this case," the court observed, " negotiable paper, supposed to belong to the defendant, is attempted to be attached, by interrogatories propounded to the maker, and upon the latter answering that he does not know by whom his notes are held, he is sought to be made liable as if he had actually declared himself indebted to defendant. Untenable as such a position would seem to be, an effort has been made to support it by argument. It is said the attachment was laid in the garnishee's hands before he had notice of the transfer of his notes, and a series of decisions of this court have been cited to show that the transferee of a debt is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having been made ; than this, there is, perhaps, no principle of our laws better settled ; but it obviously applies only to credits not in a negotiable form. As to notes indorsed in blank, which circulate and pass from hand to 1 Howe V. Quid, 28 Grattan, 1. Ormond v. Moye, 11 Ibid. 564 ; Shuler 2 Skinner v. Moore, 2 Devereux & v. Bryson, 65 North Carolina, 201. Battle, 138. * Gaffney v. Bradford, 2 Bailey, 441. 3 Myers v. Beeman, 9 Iredell, 116 ; [504] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 588 hand by mere delivery, it has never been, nor can it be pretended that any notice of transfer is necessary. If, then, no such notice is ever given, how is a garnishee who has issued his promissory note, indorsed in blank, to know in whose hands it happens to be at the precise moment when he is called upon to answer inter- rogatories? And if, perchance, he were to know that his note was still the property of the defendant, and were so to declare it, could such a proceeding restrain its negotiability ? Could it affect the rights of a bond fide holder ? Surely not. The owner- ship of negotiable paper is incessantly varying, and the obligation of the maker of such instruments is not to pay to any particular person, but to the holder at maturity, whoever he may be. Thus it is obvious that the garnishee, in this case, could give no other answer than that he has made, and it is equally obvious, that by pursuing this course the plaintiffs have attached no property out of which their judgment can be satisfied." ^ 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 affirmatively appear that the instrument is due, and belonged to the defendant after its maturity and after the time of the garnishment.^ In Texas, it was first decided that the maker of a negotiable note supposed 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 payable 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 payee, without proof that the note actually remained, at the time of the trials 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- • Sheets v. Culver, 14 Louisiana, 449 ; Price v. Brady, Il)id. 614 ; Bassctt v. Kimball v. Plant, Ibid. 511; Erwin v. Garthwaite, 22 Ibid. 230 ; Kapp y. Teel, Com. & R. R. Bank, 3 Louisiana Annual, 83 Ibid. 811. 186 ; Denham v. Pogue, 20 Ibid. 195. s Smiti, „. Blatcliford, 2 Indiana, 184. 2 Minis V. West, 38 Georgia, 18; Bur- « Junction R. K. Co. v. Cleneay, 13 ton V. Wynne, 55 Ibid. 615. Indiana, 161 ; Stetson v. Cleneay, 14 2 Wybrants v. Rice, 3 Texas, 458. Ibid. 453 ; Cadwalader v. Hartley, 17 4 Igleliart v. Moore, 21 Texas, 501 ; Ibid. 520. [505] § 589 GARNISHEE AS PARTY TO A NOTE. [CHAP. XXVIII. ment can be rendered aoaiiist the maker, the phiintiff must show that the paper has matured, and that at the time of maturity it was held by the defendant, or that it was not in the hands of a third party holding- it hond 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 paj^ee, 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 while 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 at- tachment 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- 1 Cleneay v. Junction R. R. Co., 26 5 Qreer v. Powell, 1 Bush, 489. Indiana, 375; King v. Vance, 46 Ibid. ^ Commissioners v. Fox, Morris, 48; 246. Wilson v. Albright, 2 G. Greene, 125. 2 Daris ?'. Pawlette, 3 Wisconsin, 300; ^ Gregory v. Higgins, 10 California, Carson v. Allen, 2 Chandler, 123 ; 2 Pin- 339. ney, 457. » Clough v. Buck, 6 Nebraska, 343. 3 Littlefield v. Hodge, 6 Michigan, 326. 9 Enos v. Tuttle, 3 Conn. 27. * Hubbard v. Williams, 1 Minnesota, 54. [506] CHAP. XXVIII.] GARNISHEE AS PARTY TO A NOTE. § 589 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 payee, would hold the debt as against a subsequent indorsee who received the note with notice of the garnishment.^ 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 garnishee answers that he was indebted at the time of the garnishment, and it ap- pears that the note had not been assigned before it loas 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 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 1 Culver V. Parish, 21 Conn. 408. * Scott v. Hill, 3 Missouri, 88 ; St. 'i Huff V. Mills, 7 Yerger, 42 ; Turner Louis Perpetual Ins. Co. v. Cohen, 9 Ibid. V. Armstrong, 9 Ibid. 412; Moore v. 421; Quarles y. Porter, 12 Ibid 76; Col- Greene, 4 Humphreys, 299 ; Daniel v. cord v. Daggett, 18 Ibid. 557. Rawlings, 6 Ibid. 403. 5 Scott v. Hill, 3 Missouri, 88. 3 Yarborough v. Thompson, 3 Smodes « Quarles v. Porter, 12 Missouri, 76. & Marsliall, 291 ; Thompson v. Shelby, ^ Walden v. Valiant, 15 Missouri, 409. Ibid. 296. [507] § 590 GARNISHEE AS PARTY TO A NOTE. [OHAP. XXVIII. 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 payment^ a right to his action, to re- cover it hack.'''' 1 This position, however, was afterwards aban- doned.2 In Maryland, the courts have gone to greater lengths in sus- taining the attachment of negotiable paper than in any other State. It was there held, at an early day, that the garnishment of the maker of a note in a suit against the payee, before the note is passed away by the latter, whether before or after it be- comes due, will be sustained.^ This, of course, involves the total destruction of the negotiability of the note, and constitutes a fit foundation for a subsequent unexampled decision of the Court of Appeals of that State, holding that, where the maker of a negoti- able note is, before its maturity, summoned as garnishee of one who then owns the note as an indorsee, and judgment 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 any knowledge of the attachment.* § 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. 1 Quarles v. Porter, 12 Missouri, 76 ; value from acquiring a good title, would Colcord V. Daggett, 18 Ibid. 557. be almost a destruction of one of the 2 Funkliouser v. How, 24 Missouri, essential cliaracteristics of negotiable 44 ; Dickey v. Fox, Ibid. 217. paper. It would be a great injury to 3 Steuart v. West, 1 Harris & John- persons in embarrassed circumstances son, 5-36. holding such paper ; for no one could * Somerville v. Brown, 5 Gill, 399. buy it from them with any confidence In KiefFer v. Ehler, 18 Penn. State, 388, in the title. Moreover, it would present the court use the following language, the strange result, that the more hands which is strikingly illustrative of the such paper had passed through, and the more fundamental error of the Maryland deci- indorsers there were on it, the less it would be sion: " To hold that an attachment pre- worth in the money market; for it would be vents a subsequent bona fide indorsee for subject to the more risks of attachment." [508] CHAP. XXVni.] GAKNISHEE AS PARTY TO A NOTE. § 592 § 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. § 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, 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 matu- rity ; except in Maryland ; and there, only until the true princi- ples of law shall have asserted their supremacy over, or wise legislation shall have supplanted, the anomalous and dangerous doctrine there established.^ 1 Kieffer v. Ehler, 18 Penn. State, 388. 2 Ormond v. Moye, 11 Iredell, 564. [509] § 594 garnishee's liability [chap. XXIX. 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 accej)ted 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. employed B., at an annual salary of $900, 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. The court said : " The statement shows clearly a special agreement between A. and B.'s father, at the instigation of the son, to pay the father the wages due and to become due to the son. Such an 1 Ante, § 550. 3 Van Staphorst v. Pearce, 4 2 Ante, Oil. XXIII. 258. [510] CHAP. XXIX.] AS AFFECTED BY PREVIOUS CONTRACTS. 594 agreement, once being made, it was not in the po\yer of the son to revoke it without the father's consent." ^ So, although a father is in law entitled to the earnings of a minor son, he may transfer to the son a right to receive them ; and where such a contract is entered into without any fraud, for the advantage of the son, he is entitled to the avails of his labor, and they cannot be attached for his father's debt. And in such case, if the father knows of the son's making a contract for his services on his own account, and makes no objection to it, there is an implied assent that the son shall have his earnings.^ So, where the defendant was in- debted to the garnishees, in the sum of $2,000, and agreed to serve them as bookkeeper for a year, at a salary of 81,500, pay- able 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 liquidation 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 .3 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 sustained, and the respective rights of the parties preserved under it.-* So, where A. was in- debted to B., and B. agreed to receive payment thereof in shoe- maker'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 labor- ers 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 1 Swisher v. Fitch, 1 Smedes & Mar- 3 Hall v. Magee, 27 Ahibama, 414. shall, 541 ; White v. Richardson, 12 New ^ Wliite v. Richardson, 12 New Hamp. Hamp. 93; Vincent v. Watson, 18 Penn. 93. State, 96. ^ Russell v. Convers, 7 New Hamp. ••i Whiting V. Earle, 3 Pick. 201 ; Man- 343. Chester v. Smitii, 12 Ibid. 113; Bray v. Wheeler, 29 Vermont, 614. [511] § 594 garnishee's liability [chap. xxix. contract, and that the company had the right to hold whatever was due the contractor until the laborers were paid by him, or itself apply the amount to such payment,^ So, where one agreed to work for a firm, under an understanding assented to by all the parties, that his wages should be paid by applying the same to the payment of the rent of a house occupied by him as a tenant of one of the firm ; it was held, that the firm were exonerated from any other mode of payment, and could not be charged as his garnishee on account of wages earned by him.^ So, where A. sold to B. a stock of goods, and B. agreed to pay for them by paying a debt of A. to C, for which B. was security, and also by paying the debts which A. owed for the stock ; it was held, that B. could not be charged as garnishee of A. ; at least, not until he had violated his contract.^ So, where a company was summoned as garnishee of one of its employees, and it appeared that the latter, when he entered its employment, had signed an agreement that the company might pay his wages at such times and in such parts as it might from time to time elect ; that he w^ould continue in its emplojauent, unless the contract should be terminated by mutual consent, until the expiration of thirty days' notice of his intention to leave ; and that if he should leave without first giving and " working out " such notice, all wages should be liable to forfeiture to the company ; it was held, that the contract was valid, and that so long as it remained unbroken by the company, the defendant would have no right of action for any ar- rears of wages until after the expiration of the required notice by him ; and no such notice having been given, the company was not chargeable as his garnishee.^ So, where an agreement existed before the garnishment, between the garnishee and the defend- ant, that the wages of the defendant, which it was sought to reach by the attachment, should be ]3aid weekly in advance, it was held that the attachment could not defeat the agreement.^ So, where the garnishee had bought land of the defendant, and paid him part of the purchase money, and by agreement with the defendant, the remainder was allowed to stay in the garnishee's 1 Taylor v. Burlington & M. R. R. Co., < Potter v. Cain, 117 Mass. 238. 5 Iowa, 114. See Doyle v. Gray, 110 ^ Mines v. Pyle, 4 Houston, 640 ; Cal- Mass. 206. lagan v. Pocasset Man. Co., liy Mass. •■^ Mason v. Ambler, 6 Allen, 124. 173. 3 Watkins v. Pope, 38 Georgia, 514, See Huntington v. Risdon, 43 Iowa, 517. [512] CHAP. XXIX.] AS AFFECTED BY PREVIOUS CONTRACTS. § 595 hands, as an indemnity against his liability as surety upon a note of the defendant, which was unpaid ; it was held, that the gar- nishee could not be charged.^ So, where A., a railway contractor, entered into a written contract with B. & C, whereby the latter agreed to construct a portion of the railway, and the contract contained a stipulation authorizing A., whenever in his opinion it might be necessary to secure their wages to the laborers em- ployed by B. & C, to pay the laborers, and such payments should be deducted from the amount which might be payable to B. & C. ; and in pursuance of this arrangement, A. contracted with all the laborers to pay them their wages ; it was held, that A. could not be charged as garnishee of B. & C. for an unpaid bal- ance due them on the contract, which was not sufficient to pay the amount owing to the laborers.^ § 595. A question arises here, as to the effect of the Statute of Frauds on verbal contracts entered into by the garnishee, with 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 per 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 1 St. Louis 17. Re^enfuss, 28 Wisconsin, ^ Ilazeltine v. Pa^e, 4 Vermont, 49; 144. Strong v. Mitchell, I'J Ibid. 644. 2 Balliet v. Scott, 32 Wisconsin, 174. 33 [513] § 597 gaenishee's liability, etc. [chap. xxix. 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 un- dertaking 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 unavaihng. 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 knowledge, released him from any further claim upon it ; it was held, that C. had no legal right to discharge A. from liability for the bal- ance, 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 paj^able 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 by 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.* 1 Cahill V. Bigelow, 18 Pick. 369; 3 Blake u. Williams, 6 Pick. 286. Swett V. Ordway, 23 Ibid. 266. ■* Sturtevant v. Robinson, 18 Pick. - Wiggin V. Lewis, 19 New Hamp. 175. 548. [514] CHAP. XXX.] FKATJDTJLENT ATTEMPTS. § 599 CHAPTER XXX. THE GAEiSTISHEE's LIABILITY AS AFFECTED BY A FRAUDULENT ATTEMPT BY THE DEFENDANT TO DEFEAT THE PAYMENT OF HIS DEBTS. § 598. Cases have 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 the 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." ^ 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 I Camp V. Clark, 14 Vermont, 387. v. Davis, 24 Vermont, 363 ; Kesler v See Bibb v. Smitli, 1 Dana, 680 ; Marsli St. John, 22 Iowa, 605. [515] § 600 FRAUDULENT ATTEMPTS. [CHAP. XXX. A., at the time of selling the property and taking the notes, said lie 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 respect 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 th^ 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. Doughty, 6 New Hamp. 572. 3 Patton v. Gates, 67 Illinois, 164. 2 Enos V. Tuttle, 3 Conn. 27. See * Wood v. Bodwell, 12 Pick. 2G8. Price V. Bradford, 4 Louisiana, 35. [516] 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 hond 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.^ ' Lano-ley v. Berry, 14 New Hamp. 82. 2 Diefendorf v. Oliver, 8 Kansas, 365. [517] § 002 garnishee'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 principle 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 Avas held, that B. was not chargeable 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. ^ Rodgers v. Hendsley, 2 Louisiana, 597. 3 Kaley v. Abbot, 14 New Harap. 359. [518] 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 mortgages, taking the securities in the names of his different rela- tives ; that he never surrendered his right 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 in- creasing the quantity of transferable propert}^ in aid of commerce and of private credit.^ It is a well-known rule of the common law, that no possibility, 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 annuit}'' 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 complete at law, so that he may maintain a direct action against the debtor, upon the implied promise to pay him the same, which results from such as- sent. 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. '^ Dix v. Cobb, 4 Mass. 508. [519] § 604 garnishee's liability as affected [chap. XXXI. assignor, in order to recover the debt, or to reduce the property into possession. 1 § G04. Hence where it appears that a debt due from the gar- nishee to the defendant liad 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, dur- ing 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, in a suit against the assignor, to the payment of a debt. In such 1 2 Story's Equity, § 1039, 1040. Killenberg, 82 Ibid. 295 ; Whitten v. 2 Providence County Bank v. Benson, Little, Georgia Decisions, Part II. 99 ; 24 Pick. 204. See Green v. Gillett, 5 Forepaugh v. Appold, 17 B. Monroe, 625 ; Day, 485 ; Lamkin v. Phillips, 9 Porter, Patten v. Wilson, 34 Penn. State, 299 ; 98 ; Hodson v. McConnell, 12 Illinois, Insurance Co. of Penna. v. Phoenix Ins. 170; Galena & Chicago U. R. K. Co. v. Co., 71 Ibid. 31 ; Burrows v. Glover, 106 Menzies, 26 Ibid. 121; Carr r. Waugh, Mass. 324; Norton v. Piscataqua Ins. 28 Ibid. 418; Cairo & St. L. R. R. Co. v. Co., Ill Ibid. 532. [520] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 606 a case the Supreme Court of Tennessee sustained a bill 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 alienation is governed by the law of the place of his domicile. It is also a general principle, sanctioned and acted on in all civilized countries, that the laws of one country will, by what is termed the comity of nations, be recognized and executed in an- other, where the rights of individuals are concerned. Therefore, the law of the place where a personal contract is made, is to gov- ern in deciding upon its validity or invalidity ; and a conveyance 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 ef- fectual 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 mo- ment it is made, and the assignor, if he afterward receive pay- 1 Haynes v. Gates, 2 Head, 598. wright, 10 Ibid. 19 ; Russell v. Tunno, - Van Buskirk v. Hartford Fire Ins. 11 Ricliardson, 303. Co., 14 Conn. 583 ; Burlock v. Taylor, IG -^ Houston v. Nowland, 7 Gill & John- Pick. 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, 6 826. llhode Island, 446 ; Northara v. Cart- [5211 § GOT garnishee's liability as affected [chap. XXXI. ment 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 there must be notice to the debtor. If, therefore, one indebted in such form be summoned as garnishee of his creditor, and have received no no- tice 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 as- signor, it will afford him no protection against a suit by, and a second payment to, the assignee.^ 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 conclusive, or may be controverted and disproved. For if the answer be conclusive, and the garnishee fails to state the information he has received, because he may not 1 Tudor 17. Perkins, 3 Day, 364 ; Rich- v. Washington Ins. Co., 1 Iowa, 404; ards V. Griggs, 16 Missouri, 416 ; Clod- Large v. Moore, 17 Ibid. 258 ; Prescott v. felter v. Cox, 1 Sneed, 330; McCoid v. Hull, 17 Johns. 284 ; Kimbrough v. Davis, Beatty, 12 Iowa, 299 ; Dodd v. Brott, 1 84 Alabama, 583 ; Page v. Thompson, 43 Minnesota, 270. New Hanip. 373. - Nugent v. Opdyke, 9 Robinson (La.), ^ Bank of St. Mary v. Morton, 12 453; Crayton v. Clark, 11 Alabama, 787; Robinson (La.), 409. In Vermont, it was Colvin V. Rich, 3 Porter, 175; Lamkin held, that the fact that the information V. Phillips, 9 Ibid. 98 ; Foster v. Wliite, came to the garnishee on a Sunday did Ibid. 221 ; Fowler v. Williamson, 52 Ibid, not make it less effective, than if it had 16 ; Pitts V. Mower, 18 Maine, 361 ; come on any other day. Crozier v. Bunker i-. Gilmore, 40 Ibid. 88 ; Walters Shants, 43 Vermont, 478. [522] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 609 believe it to be true, he assumes all the responsibility of the cor- rectness of his belief, not only as to the facts within his knowl- edge, 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.^ § 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.4 § 609. An assignment of a debt is usually made in writing, but this formality is not necessary where the debt is evidenced by a writing ; 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.^ Wher- 1 Foster v. Walker, 2 Alabama, 177 ; held, that an attachment of a debt, made Wicks V. Branch Bank, 12 Ibid. 594. before notice of its assignment, will pre- - Large v. Moore, 17 Iowa, 258. vail against the assignment, though no- 2 Dix V. Cobb, 4 Mass. 508 ; Stevens tice be given to the debtor before judg- V. Stevens, 1 Ashmead, 190 ; Pellnian v. ment against him as garnishee. Judah Hart, 1 Penn. State, 263 ; Crayton v. v. Judd, 5 Day, 534 ; Bishop v. Holcombe, Clark, 11 Alabama, 787; Smith v. Ster- 10 Conn. 444; Van Buskirk v. Hartford ritt, 24 Missouri, 260 ; Walters v. Wash- F. I. Co., 14 Ibid. 141 ; Ward v. Morri- ington Ins. Co., 1 Iowa, 404; Muir v. son, 25 Vermont, 593. Schcnck, 3 Hill (N. Y.), 228; Northam 4 Crayton v. Clark, 11 Alabama, 787. V. Cartwright, 10 Rhode Island, 19. That ^ King v. Murphy, 1 Stewart, 228 ; the doctrine stated in the text is correct, Bayley on Bills, 2d Am. Ed. 102 ; Norton cannot, I think, be reasonably doubted ; v. Piscataqua Ins. Co., Ill Mass. 532. but in Connecticut and Vermont, it is [523] § 610 GAENISHEE'S liability as affected [chap. XXXI. ever, therefore, a writing given by 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 gar- nishee. ^ 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.^ § 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 sufl&- cieut, 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.3 In all such cases the assignment should, for greater cer- tainty, be written ; though, as we shall presently see,* a verbal assignment, if assented to by the debtor, will suffice. An assignment of a chose 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.^ So, a power of attorney, irrevocable, authorizing the 1 Littlefield v. Smith, 17 Maine, 327 ; » Porter v. Bullard, 26 Maine, 448. Hardy v. Colby, 42 Ibid. 381 ; Byars v. * Post, § 614. Griffin, 31 Mississippi, 603. ^ Watson v. Bagaley, 12 Penn. State, 2 Dennis v. Twichell, 10 Metcalf, 180. 164. [524] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 611 attorney to collect a sum of money, to his own use, is a con- structive assignment of the money to him.i 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 terms irrevocable, and does not expressly author- ize the attorney to receive the money to his own use.^ So, where a garnishee 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 .3 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 in 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.^ § 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 which it is drawn, or any part thereof, until accepted by the drawee.^ If, however, an order be drawn for the ivhole of a designated fund in the hands of a drawee, it is an assignment, whether ac- 1 Gerrish v. Sweetser, 4 Pick. 374. 277 ; Cowperthwaite v. Sheffield, 1 Sand- 2 Weed V. Jewett, 2 Metcalf, 608. See ford Sup. Ct. 416 ; 3 Comstock, 243 People V. Tioga C. P., 19 Wendell, 73. Sands v. Matthews, 27 Alabama, 399 3 Adams v. Robinson, 1 Pick. 461. Luff i-. Pope, 5 Hill (N. Y.), 413; 7 Ibid? See Johnson v. Thayer, 17 Maine, 401. 577 ; Winter v. IJrury, 1 Selden, 525 * Bobbins v. Bacon, 3 Maine, 346; Kimball v. Donald, 20 Missouri, 577 Conway v. Cutting, 51 New Hamp. 407. Wilson v. Carson, 12 Jlaryland, 54. 5 Mandeville v. Welch, 5 Wheaton, [525] § 612 garnishee's liability as affected [chap. XXXI. cepted by the latter or not ; * but it is well settled that where an order is drawn on either a general or particular fund, for a 'part only^ 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 pajmient 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.^ § 612. It is not necessary that the debt assigned should be due at the 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, where 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 the assignment was valid, and that B. could not be held as 1 McMenomy v. Ferrers, 3 Johnson 71; Miller v. Hubbard, 4 Cranch C. C 451 ; Macomber v. Doane, 2 Allen, 5-41 lOngman v. Perkins, 105 Mass. Ill Garland v. Harrington, 51 New Hamp 98; ManJeville v. Welch, 5 Wheaton, 277 ; Cowperthwaite v. Sheffield, 1 Sand- ford Sup. Ct. 416; 3 Comstock, 243; Gibson v. Cooke, 20 Pick. 15 ; Tripp v. Brownell, 12 Gushing, 376. 409. ^ BuUard v. Randall, 1 Gray, 605. ^ Poydras v. Delaware, 13 Louisiana, See Duncan v. Berlin, 60 New York, 151. [526] . CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. § 614 garnishee of A.i 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- poration could not be held as garnishee of A.^ § 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 la^ang common sewers ; " with a power of attorney irrevocable to receive the 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 the 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 the debtor assent. Where such assent is given, the assignment is complete, and the debtor is bound to 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 1 Weed V. Jewett, 2 Metcalf , 608. 4 Mass. 258 ; Jolinson v. Pace, 78 Illinois, See Emery v. Lawrence, 8 Gushing, 151 ; 143. Hartley v. Tapley, 2 Gray, 505 ; Taylor ■^ Payne v. Mobile, 4 Alabama, 333. V. Lynch, 5 Ibid. 4U ; Lannan v. Smith, 7 See Tucker v. JMarsteller, 1 Crunch C. C. Ibid. 150; Wallace v. Walter Haywood 2-54; Garland v. Harrington, 51 New C. Co., 16 Ibid. 20'J ; Caliill v. Bigelow, Hamp. 40!). 18 Piclc. 360; Van Staphorsl v. Pearce, '^ Mulhall v. Quinn, 1 Gray, 105. [527] II § 615 garnishee's liability as affected [chap. XXXI. stated that before he was 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. replied 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, where 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, in 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, where the subsequent purchaser has not such knowledge. He may know that the debtor transferred the paper without consideration, but that will not prevent his acquiring, for value, a complete title ; for such transfer is not 1 Black V. Paul, 10 Missouri, 103. See Hutching v. Watts, 35 Ibid. 860; Ponton Curie V. St. Louis Perpetual Ins. Co., 12 v. Griffin, 72 North Carolina, 362 ; Put- Ibid. 578 ; Porter v. Bullard, 26 Maine, ney v. Farnham, 27 Wisconsin, 187 ; 448; Rudd v. Paine, 2 Cranch C. C. 9 ; Balliet v. Scott, 32 Ibid. 174. Newby v. Hill, 2 Metcalfe (Ky.), 530; - Lovely w. Caldwell, 4 Alabama, 684. Noyes v. Brown, 33 Vermont, 431; 3 jvjarliu y. Kirksey, 23 Georgia, 164. [528] CHAP. XXXI.] BY AN ASSIGNMENT OF THE DEBT. 615 a necessarily fraudulent iper 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 check 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 at- tachment, 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, 440. From the opinion of the court, we present the following extract : " From all other property commercial paper is distinguished by the fact that it carries on its face all the evidences of title which persons dealing in it are charged with notice of. Hence a party may, with per- fect safety, purchase a negotiable instru- ment, if it is all fair upon its face, unless he has actual notice of a defect in the holder's title, or it is offered under suspi- cious circumstances. Hence, also, notice that the instrument is a mere accommo- dation or gift, does not prevent a pur- chaser for value from taking a good title ; for the giving of the paper is a declara- tion of intention that it may be put into free circulation for the benefit of the payee ; and therefore one may, with a good conscience, buy it and claim upon it, even though he knows its character. A contrary doctrine would involve the duty on the part of the accommodation payee to inform the purchaser of the character of the instrument, and this would then defeat the very object for which it was given. " From these remarks it is apparent that a donee of negotiable paper does not stand upon the same rule as a purchaser from the donee with knowledge of the gift; for the latter may recover, though the former could not have done so. Notice that it is a gift is not notice that payment is not intended, and one may purchase bond fide under the former no- tice, when he could not under the latter. The donee has a good title, though a revocable one, and he can pass a good title to any one not notified of the revo- cation. " These principles are plain, and rule the question under consideration. The check was a gift to B., and by the gift he acquired a good title as against the donor, but revocable by the donor's cred- itors. The purchaser knew of the gift, but he did not know of the revocation, or of the facts which amounted to a revo- cation, for he knew nothing of the donor's insolvency, and the donee was also igno- rant of it. One could sell and the other could purchase the check in good faith ; and the subsequent notice of insolvency and reclamation by the creditors does not affect the purchaser's conscience, or make it mala fides in him to hold on to what he has honestly and innocently purchased." 34 Stevens v. Pugh, 12 Iowa, 430. [529] S 018 LEGAL PKOCEEDINGS [CHAP. XXXII. CHAPTER XXXII. THE garnishee's LIABILITY, AS AFFECTED BY THE COMMENCE- MENT, PENDENCY, AND COMPLETION OF LEGAL PROCEEDINGS AGAINST HIM, BY THE DEFENDANT, FOR THE RECOVERY OF 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. The 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. 2 ; i but it was overruled in 1828, under the then existing statute.^ In New Hampshire, likewise, the 1 Gridley v. Ilarraden, 14 Mass. 496. ^ Thorndike v. DeWolf, 6 Pick. 120. [530] CHAP. XXXII.] BY DEFENDANT AGAINST GAKNISHEE. § 619 same ground was at one time assumed,^ but afterwards aban- doned.2 § 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 r " 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 an- other court. This would produce a collision in the jurisdiction of courts, that would extremely embarrass 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 pro 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 Burnham v. Folsom, 5 New Ilamp. See Smith v. Durbridge, 2G Louisiana 568. Annual, 531. Foster v. Dudley, 10 Foster, 463. [531] § 620 LEGAL PROCEEDINGS [CHAP. XXXII. determine tlio right. The rule must be reciprocal ; and where tlie 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." ^ The 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 commence- ment of the garnishment proceeding, and to which he has ap- peared.2 § 620. In Massachusetts, 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 against the defendant's demand of judgment.^ The same rule 1 Wallace v. McConnell, 13 Peters, 2 Whipple v. Robbins, 97 Mass. 107. 136. See Bingham v. Smith, 5 Alabama, ^ American Bank v. Rollins, 99 Mass. 651; Greenwood v. Rector, Hempstead, 313. 708; Wood v. Lake, 13 Wisconsin, 84; 4 Thorndike v. DeWolf, 6 Pick. 120. Arthur i;. Batte, 42 Texas, 159. ^ Howell v. Freeman, 3 Mass. 121. [532] CHAP. XXXII.] BY DEFENDANT AGAINST GARNISHEE. § 620 was enforced in a case of similar 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 attachment, that the garnishment proceedings should be contin- ued 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 apjDellate 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 de- fence against B.'s demand, or by his inattention, had placed him- self beyond the protection of those principles.* In Maine, the mere fact of issue being joined, is considered to have no effect in exempting the garnishee from liability.^ 1 McCaffrey v. Moore, 18 Pick. 492. * Locke v. Tippets, 7 Mass. 149. •i Kidd V. Shepherd, 4 Mass. 238. 5 Smith v. Barker, 10 Maine, 458. 3 Foster v. Jones, 15 Mass. 185. [533] II § C)20 LEGAL mOCEEDlNGS [CHAr. XXXII. In Vermont and New Ilampsliire, on the other hand, the courts seem disposed to adopt the Massachusetts rule, so far as to dis- charge tlie garnishee, where the condition of the action agahist him is such tliat 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 b}- 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 which 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 in the same court ;^ but not where they are in different courts ; at least when the debt is controverted.*^ 1 Trombly v. Clark, 13 Vermont, 118; the plaintiff shall cause the defendant to Foster v. Dudley, 10 Foster, 463 ; Thayer be released from the garnishment. V. Pratt, 47 New Hamp. 470. » McCarty v. Enilen, 2 Dallas, 277 ; 2 Wadsworth v. Clark, 14 Vermont, 2 Yeates, 190 ; Crabb v. Jones, 2 Miles, 139. In Spieer v. Spicer, 23 Vermont, 130; Sweeny v. Allen, 1 Penn. State, 678, it was held that when a defendant, 380. in a suit pending, is summoned as gar- * Huff w. Mills, 7 Yerger, 42 ; Thrasher nishee of the plaintiff, and is charged for v. Buckingham, 40 Mississippi, 67 ; Lieber the full amount of the plaintiff's claim v. St. Louis A. & M. Assoc'n, 36 Missouri, against him, and the judgment charg- 382. ing him remains unsatisfied; judgment ^ Ilitt r. Lacy, 3 Alabama, 104; Mc- should be rendered for the plaintiff for Donald v. Carney, 8 Kansas, 20. the amount of his claim ; but that the <> Bingham v. Smith, 5 Alabama, 651. court will order execution stayed, until [534] CHAP. XXXII.] BY DEFENDANT AGAINST GARNISHEE. § 622 § 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 where 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 ex- pected to be decided that the judgment debtor could not be charged as garnishee of the judgment creditor. In New Hampshire and Vermont, 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 charged as garnishee of the plaintiff therein ; ^ and tliat 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 1 Tronibly v. Clark, 18 Vermont, 118. 3 Prescott v. Parker, 4 Mass. 170. 2 Sharp V. Clark, 2 Mass. 'Jl. [535] § 623 LEGAL PROCEEDINGS [CHAP. XXXII. same ground , ^ as did the Supreme Courts of New Jersey,^ Ar- kansas,^ and Oregon.'^ § 623. On the other side we find the courts of Connecticut, Pennsylvania, Dehiware, ALabaraa, 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 ob- vious 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,' &c. ; and that ' any debt due from such debtor to the defendant shall be secured to pay such judgment as the plaintiff shall recover.' The provisions of this statute were extended, in 1830, 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 liqui- 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 debt- ors, 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 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 in- troduced, continued, and extended ; but the general interest of the community in this respect has been considered as paramount 1 Franklin v. Ward, 3 Mason, 136. 3 Trowbridge v. Means, 5 Arkansas, 2 Shinn v. Zimmerman, 3 Zabriskie, 135 ; Tunstall v. Means, Ibid. 700. 150. * Norton v. Winter, 1 Oregon, 47. [536] CHAP. XXXII.] BY DEFENDANT AGAINST GAENISHEE. § 625 to the possible and occasional inconveniences to which individu- als 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, influenced 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 policy, 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- ment is in one court and the garnishment in another. There a new question springs up, growing out of the conffict 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 different governments. Take, for example, the case of a court of law attempting to arrest the execution of a decree of a 1 Gager v. "Watson, 11 Conn. 168. ■« Skipper v. Foster, 29 Alabama, 330. - Crabb y. Jones, 2 Miles, 130; Sweeny * Gray v. Henby, 1 Sniedes & Mar- V. Allen, I Penn. State, 380 ; Fithian v. sball, 6 Warren v. Moore, 52 Georgia, 562. 7 Baltimore & Ohio K. R. Go. v. Gal- lahue, 12 Grattan, 655. ** Barnes v. Way land, 14 Louisiana Annual, 791. iSed contra Adlum v. Yard, 1 Kawle, 163. CHAP. XXXIII.] ANSWER OF THE GARNISHEE. 656 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 dajs 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 tliouglit 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." 2 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 Hmited in its application to cases where tlie garnishee, in some part of his answer, makes statements, whicli, unexplained, would prltad facie subject him to liability.^ The last case cited seems to be one of this charac- 1 Sebor v. Armstrong, 4 Mass. 206. Sampson v. Hyde, 16 Ibid. 492 ; Scott v. 'i Cleveland v. Clap, 5 Mass. 201; Kay, la Pick. 360 ; Onnsbee <;. Davis, 5 Sampson v. Hyde, 16 New Hamp. 492. Kliode Island, 442. » Kelly V. Bowman, 12 Pick. 888 ; ^ Graves o. Walker, 21 Pick. 160. United States v. Langton, 5 Mason, 280; ^ Shearer v. Handy, 22 Pick. 417. Gidditigs V. Coleman, 12 New Hamp. 153; [559] § 658 ANSWER OF THE GARNISHEE. [CHAP. XXXIII. ter. 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 primd facie liability appearing by the answer. § G57. 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 liaving 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 gar- nishee answered, " that he had received cotton from the de- fendants, 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 question, and the garnishee was charged.^ But though the answer to one of several interrogatories be not full and ex- plicit, 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 pe- culiar 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 prop- osition requires many qualifications, and may be true or not, ac- cording 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 facts, and withholds them, or evades a full examination ; that 1 Hart V. Dahlgreen, 16 Louisiana, - Maduel v. Mousscaux, 28 Louisiana 559. Annual, byi. [560] CHAP. XXXIII.] ANSWER OF THE GARNISHEE. 658 may furnish a good ground to presume every thing 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 disclo- sures from third persons relative to the property ; and no extrane- ous or collateral evidence of third persons is admissible in the suit, to establish or discharge his liabihty. 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, there- fore, will not adjudge him a trustee, except upon clear and de- terminate evidence drawn from his own answers." ^ In another case the same eminent jurist said : " I agree that doubtful ex- pressions may be construed most strongly against the trustees, if they admit of two interpretations ; but they are not to be tor- tured 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, 537. 2 United States v. Langton, 5 Mason, 280. [561] 36 § 658 a JUDGMENT AGAINST THE GABNISHEE. [CHAP. XXXIV. 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 against the defendant.^ There is no doubt that that fact shoukl 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 at- tachment 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 - 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, should be treated as part of the 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 interroga- See Wyman v. Stewart, 42 Alabama, tories to, and answer of, the 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. [562] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658 « of the rendition of the judgment, or the amount thereof, to ap- pear? In Tennessee, in a contest between a garnishment under a proceeding by attachment in equity, and a garnishment 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 in- debted to the defendant, in any cause wliere 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 posses- sion or under his control, and that he believes process of garnish- ment against such person is necessary to obtain satisfaction of such judgment." The record in such a case would consist of the afl&davit and summons, tlie return of the officer, and. the inter- rogatories, answer, and judgment in the garnishment proceed- ing. 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 judgment against the garnishee in such a proceeding was fatally defective, because it did not recite the amount of the judgment against the defend- ant;^ but this, perhaps, is more strict than necessary. It should be enough if, in any way, in the lecord of the garnishment pro- ceeding, 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 judgment 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 ad- mission of the existence of the judgment described in the affida- vit, and was sufficient proof, as against him, of that fact.* But, 1 Alley V. Myers, 2 Tennessee Ch'y, ^ Faiilks v. Heard, 31 Alabama, 516; 206. Chambers (•. Yarnell, 37 Ibid. 400. 2 Gunn V. Howell, 27 Alabama, 6G3; * Jackson v. ISliipmau, 28 Alabama, Faulks V. Heard, 31 Ibid. 516 ; Gould v. 488. Meyer, 36 Ibid. 565. [563] § 658 bh JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. Avhere, in such a proceeding, the affidavit did not show the amount of the judgment against the defendant, it was held, that any judg- ment against the garnishee was erroneous.^ § 658 5. It is not necessary, unless required by statute, that the judgment against the garnishee should he taken at the time of tliat against the defendant. Forbearance of the ^)laintiff 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 tliat 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 j^ears 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 plaintiff's taking out a scire facias against the garnishee.'^ § 658 bb. 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 by 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 nual, 565; riiillips y. Gerraon, 43 Iowa, a garnishment proceeding to judgment 101. against the garnishee, and the interven- s Graves v. Cooper, 8 Alabama, 811 ; ing insolvency of the garnishee, do not Lockhart y. Jolmson, 9 Ibid. 223; Bost- deprive the plaintiff of his right to prose- wick V. Beach, 18 Ibid. 80. cuie his claim agamst the defendant to * Leigh V. Smith, 5 Alabama, 683; judgment. Noble v. Merrill, 48 Maine, Robinson v. Starr, 3 Stewart, 90. 140. 5 Leigh V. Smith, 5 Alabama, 583. ^ Weber v. Carter, 1 Philadelphia, fi Slalter v. Tiernan, 6 Louisiana An- 221, [564] CHAP. XXXIY.] JUDGMENT AGAINST THE GARNISHEE. § 658 d the garnishee, at his death, had in his hands specific chattels belonging- to the defendant, which go into the hands of his rep- resentative, the court may compel them to be delivered up for application to the plaintiff's judgment when recovered. ^ § 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 defendant is not Avholly 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 dis- solved 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 onl}' 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 gar- nishee.^ § 658 d. Nothing is more important in the taking of a judgment against a garnishee, than that he should have a fair hearing be- fore the court on the question of his liability. 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 court decided that 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 1 Parker v. Parker, 2 Hill Cli'y, 35. * Wales v. Muscatine, 4 Iowa, 302 ; - Wigwall V. Union C. & M. Co., 37 Burton v. District Township, 11 Ibid. Iowa, 129. IGG. i Myers v. Smitli, 20 Ohio State, 120. ^ Barry v. Hogan, 110 Mass. 209. [565] § 658 e JUDGIMENT AGAINST THE GAENTSHEE. [CHAP. XXXIV. court citlipr to have recommitted flie wliole matter to the cora- missiouer for further investigation, or to have taken the answer in open court.^ § 658 e. In many States, a judif^ment Iiy default may be taken apfainst a o^arnisliee upon his failing to answer. If he permit such a judgment, when in fact he ought not to he charged, be- cause not a debtor to, or holding any effects of, the defendant, he is primd fdcie 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 answer. 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 Avill 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 ap- pear 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 him, and protect himself from an improper judgment, as a defendant in an ordinary suit is. If, b}* his failure in this respect, the plaintiff gain an advantage over him, he is without relief. Tlius, where a garnishee answered, den^dng indebtedness to the defendant, and afterwards the case was taken by change of venue to another county, where the plaintiff filed a replication 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 1 Sawyer v. Webb, 5 Iowa, 315. ^ pifield v. Wood, 9 Iowa, 250 ; Par- 2 Hair v. Lowe, 19 Alabama, 224; menter v. Childs, 12 Ibid. 22; Willet u. Peters v. League, 13 Maryland, 58 ; Price, 32 Georgia, 115 ; Frtidenrich v. Windwart v. Allen, Ibid. 190; Atlantic M.'ore, 24 Maryland, 295; Anderson v. F. & M. Ins. Co. V. Wilson, 5 Rhode Graff, 41 Ibid. 601 ; Lawrence v. Smith, Island, 47!) ; Rhode Island Ex. Bank v. 45 New Hamp. 533. Hawkins, 6 Ibid. 108 ; Danaher v. Pren- tiss, 22 Wisconsin, 311. [506] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 658/ his duty 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 plaintiff.^ In Illinois it was 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 /. A garnishee in default is as much entitled as a defendant 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 plaintiff's 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 en- try of the judgment against the defendant these words were added : " Judgment 7iisi as to John T. Bonner and other gar- nishees, answer on file, and cont'd." These words were held not 1 Chase v. Foster, 9 Iowa, 429. * Russell v. Freednien's Savings Bank, 2 Rose V Wliiiley, 14 Louisiana An- 60 Georgia, 575. nual, 374. * Platen v. Byck, 50 Georgia, 245, 3 United States Express Co. v. Bed- bury, 134 Illinois, 459. [567] § 659 JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. to amount to a judgment at all.^ And wliere 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 $220.87, 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 an- swer, taken together, must control, and the garnishee is to be 1 Bonner v. Martin, 37 Alabama, 83 ; bright, 2 G. Greene, 125 ; Pierce v. Carle- Goode V. Holcombe, Ibid. 94. See John- ton, 12 IlUnois, 358 ; People v. Jolinson, son V. McCutchings, 43 Texas, 553. 14 Ibid. 342; Bliss v. Smith, 78 Ibid. 2 Hotfman v. Simon, 52 Mississippi, 359; Cairo & St. L. R. K. Co. v. Killen- 302. berg, 82 Ibid. 295 ; Ellicott v. Smith, 2 3 Wetherill v. Flanagan, 2 Miles, 243 ; Craneh C. C. 543 ; Porter v. Stevens, 9 Bridges I!. North, 22 Georgia, 52; Tliomp- Gushing, 530; Lomerson v. Huffman, son I'. Fischesser, 45 Ibid. 369 ; Allen v. 1 Dutciier, 625 ; Williams v. Housel, 2 Morgan, 1 Stewart, 9 ; Pressnall v. Mabry, Iowa, 154 ; Hunt v. Coon, 9 Indiana, 537 ; 3 Porter, 105 ; Smith i;. Chapman, 6 Ibid. Reagan y. Pacific Railroad, 21 Missouri, 365; Minis v. Parker, 1 Alabama, 421 ; 80; Driscoll v. Hoyt, 11 Gray, 404; Foster v. Walker, 2 Ibid. 177; Fortune Smith v. Clarke, 9 Iowa, 241; Morse v. V. State Bank, 4 Ibid. 385 ; Connoley v. Marshall, 22 Ibid. 290 ; Church v. Simp- Cheeseborough, 21 Ibid. 166; Powell v. son, 25 Ibid. 408; Fitliian v. Brooks, 1 Sammons, 31 Ibid. 552 ; Estill y. Goodloe, Philadelpliia, 2G0; Allegheny Savings 6 Louisiana Annual, 122 ; Coe v. Rocha, Bank u. Meyer, 59 Penn. State, 361 ; 22 Ibid. 590 ; Harney v. Ellis, 11 Smedes Pickler v. Rainey, 4 Heiskell, 335. & Marshall, 348; Brown v. Slate, 7 * Baker v. Moody, 1 Alabama, 315; Humphreys, 112; Lorman v. Phcsnix Mann y. Buford, 3 Ibid. 312; Pickler v. Ins. Co., 33 Michigan, 65; Davis t;. Paw- Rainey, 4 Heiskell, 335; Donnelly v. lette, 3 Wisconsin, 300 ; Wilson •;. Al- O'Cjnnor, 22 Minnesota, 309. [568] CHAP. XXXIV.] JUDGMENT AGAINST THE GARNISHEE. § 659 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;^ judgment must be rendered in his favor, unless, from the statements of the answer, it appear that the denial is un- true; in which case the denial will be disregarded and judgment 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 hands, the court will not take cognizance of, and decide that 1 Cardany v. N. E. Furniture Co., 107 ^ Wright v. Foord, 5 New Hamp. 178; Mass. 116. Ferine v. George, 5 Alabama, 041; Bebb 2 Hitchcock V. Watson, 18 Illinois, v. Preston, 1 Iowa, 460. 289; Talbott v. Tariton, 5 J. J. Marshall, '^ United States v. Langton, 5 Mason, 641; Wilcox v. Mills, 4 Mass. 218 ; San- 280; Picquet v. Swan, 4 Mason, 443; ford f. Bliss, 12 Pick. 116 ; Meacham v. Kich v. IJeed, 22 Maine, 28; Oliver v. McCorbitt, 2 Metcalf, 352 ; Allen v. Hall, Atkinson, 2 Porter, 546 ; Frost v. Patrick, 5 Ibid. 263 ; Brown v. Silsby, 10 New 3 Sniedes & Marshall, 783 ; Williams v. Uam]). 521. Jones, 42 Mississippi, 270. •* Hean v. Bean, 33 New Ilamp. 279. 8 Gordon v. Coolidgc, 1 Sumner, 537; * Wright V. Foord, 5 New Hamp. 178; Pierce v. Carletcm, 12 Illinois, 358; Ban- Jones V. Howell, 16 Alalmma, 695; Mc- ning y. Sibley, 3 Minnesota, 889; Pioneer Kee V. Brown, 45 Texas, 503. Printing Co. v. Sanborn, Ibid. 413; Morse 5 Smith V. Bruner, 23 Mississippi, 508. v. Marshall, 22 Iowa, 290. [509] § 659 JUDGMENT AGAINST THE GARNISHEE. [CHAP. XXXIV. question on the answer alone, it being a question whicli 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 souglit to charge him ; he cannot be charged on his answer on that account.^ 1 Rich V. Reed, 22 Maine, 28. 2 Fay v. Sears, 111 Mass. 154. [570] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 661 CHAPTER XXXV. EXTENT OF GARNISHEE'S LIABILITY AS TO AMOUNT, AND AS TO THE TIME TO WHICH THE GARNISHMENT RELATES. § 660. As an attaching creditor can acqnire, through the attachment, no greater rights against the garnishee than the defendant 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 dis- posing of the property.^ 1 Ante, § 458 ; Talbott v. Tarlton, 5 Woodliouse v. Commonwealth Ins. Co., J. J. Marsliall, 641; Wilcox v. Mills, 4 54 I'enn. State, 307 ; Coble '■. Noneniaker, Mass. 218 ; Sanford v. Bliss, 12 Pick. 116 ; 78 Ibid. 501 ; St. Louis v. llegenfuss, 28 Meacham v. McCorbltt, 2 Metcalf, 352 ; Wisconsin, 144. Allen V. Hall, 5 Ibid. 263 ; Brown v. ^ Bnllard v. Hicks, 17 Vermont, 198. Silsby, 10 New Hamp. 521 ; Burton v. See Robeson v. M. & A. Railroad Co., 13 District Township, 11 Iowa, 1G6 ; Peet v. Louisiana, 465. Whitniore, 16 Louisiana Annual, 48 ; ^ Lewis v. Sheffield, 1 Alabama, 134. [571] k § 663 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 them. 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, &c., 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 any 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; Hitchcock v. Watson, 18 Illinois, 289; Walkerr. Wallace, 2 Dallas, 113; Wither- Doggett v. St. Louis M. & F. Ins. Co., spoon I'. Barber, 3 Stewart, 333 ; Bread- 19 Missouri, 201 ; Timmons v. Jolinson.. ing V. Siegwortli, 29 Penn. State, 39ii ; 15 Iowa, 23. The rule stated in tlie text, Tupper V. Cassell, 4-5 Mississippi, 352 ; it will be noticed, applies to systems of Prout V. Grout, 72 Illinois, 456; Johnson practice, prevalent everywhere, I think, V. Delbridge, 35 Michigan, 436. except in Illinois, authorizing the judg- '^ Thompson v. Allen, 4 Stewart & ment against the garnishee to be ren- Porter, 184; Newlin v. Scott, 26 Penn. dered in favor of the plaintiff'. In that State, lO'i ; Breading v. Siegworth, 29 State, however, when a garnishee is lia- Ibid. 396 ; Herring v. Johnson, 5 Phila- ble, the judgment is rendered in favor delphia, 443. of the defendant, for the benefit of such ■* Randolph v. Heaslip, 11 Iowa, 37. attaching and judgment creditors as are * Newlin i;. Scott, 26 Penn. State, 102; entitled to share in its proceeds; and Breading v. Siegworth, 29 Ibid. 39G. there the judgment is for the whole debt 3 Tyler ^^ Winslow, 46 Maine, 348 ; of the garnishee to the defendant, though [572] CHAP. XXXY.] EXTENT OF GARNISHEE'S LIABILITY. § 665 as the jtKlgment against him is only intended to secure the satis- faction of that against the defendant, if the phiintiff 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 § 664. 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 ^yhere 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 where 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 wliich 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 way 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 de- fendant 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 pay- ing, and there is therefore no wrongful detention, and therefore no liability for damages.^ But where the garnishee's debt is one 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 it be more than is needed to satisfy the * Willing v. Consequa, Peters C. C. attachment; and if more, tlie surplus is 301. for the benefit of the defendant. Stahl & Lyman v. Orr, 26 Vermont, 119 ; V. Webster, 11 Illinois, 511 ; Webster v. Adams v. Cordis, 8 Pick. 2G0; Quigg v. Steele, 75 Ibid. 544. Kittredge, 18 New Hamp. 137. ^ Spring V. Ayer, 23 Vermont, 516. ^ Prescott v. Parker, 4 Mass. 170 ; See § 673. Adams v. Cordis, 8 Pick. 260 ; Swamscot - Tliompson v. Wallace, 3 Alabama, Machine Co. v. Partridge, 5 Foster, 369 ; 132 ; Price v. Iliggins, 1 Littell, 274. Irwin v. Pittsburg & C. K. R. Co., 43 s Brown v. Silsby, 10 New Hamp. Penn. State, 488. 521 ; Blodgett v. Gardiner, 45 Maine, 542. [573] § 665 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. 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 proposition, that a garnishee ought not to be charged with inter- est on his debt to the defendant, while he is, by the legal oper- ation of an attachment, restrained from making payment ; ^ whether the attachment terminate in favor of the plaintiff or the defendant.^ This applies, however, onl}^ 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 b}' 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 Maine, 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.^ In Massachusetts, the presumption is that the garnishee is pre- vented by law from paying the debt, or using the money ; and if 1 Fitzgerald D. Caldwell, 2 Dallas, 215; Hodjjson, 9 Penn. State, 468; Irwin v. Willing V. Consequa, Peters C. C. 301 ; Pittsburgh & C. R. R. Co., 43 Ibid. 488; Stevens v. Gwathmey, 9 Missouri, 628 ; Jackson's Ex'r v. Lloyd, 44 Ibid. 82; Cohen v. St, Louis Perpetual Ins. Co., 11 Allegheny Savings Bank v. Meyer, 59 Ibid. 374 ; Little v. Owen, 32 Georgia, Ibid. 3()1 ; Rushton v. Howe, 64 Ibid. 63. 20; Clark y. Powell, 17 Louisiana Annual, ■• Willing v. Consequa, Peters C. C. 177. 301. 2 Mackey v. Hodgson, 9 Penn. State, ^ Mattingly v. Boyd, 20 Howard Sup. 468. Ct. 128 3 Fitzgerald v. Caldwell, 2 Dallas, 6 Norris v. Hall, 18 Maine, 332; 215; 1 Yeates, 274; UpdegrafTy. Spring, Blodgett o. Gardiner, 45 Ibid. 542. 11 Sergeant & Rawle, 188 ; Mackey v. [574] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 665 the 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 rightful owner when called on for that purpose, but uses it indiscriminately with his own, he is chargeable with interest. 2 In Marj'land, if the garnishee assumes the position of a litigant, he is chargeable with interest.^ In Virginia, if he keep the defendant's mone}^ in his hands during the pendency of the attachment, he is presumed 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 Missouri, the garnishee's denial bf indebtedness to the de- fendant fully rebuts any presumption that he had had the money lying idle by him, ready to pay the plaintiff's demand when judg- ment should be obtained.^ 1 Adams v. Cordis, 8 Pick. 260. Templeman v. Fauntleroy, 3 Randolpli, 2 Woodruff V. Bacon, 35 Conn. 97. 434. See Candee ;;. Skinner, 40 Ibid. 464. 5 Georgia Ins. and Trust Co. v. Oliver, 3 Chase v. Manliardt, 1 Bland, 333. 1 Georgia, 38. * Tazewell v. Barrett, 4 Hening & o gteveus v. Gvvathmey, 9 Missouri, Munford, 259 ; Koss v. Austin, Ibid. 502 ; 636. [575] § 666 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. In Ohio, nothing short of proof that tlie 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 garnisliee is presumed to liave kept the money as a separate fund ; but this presumption may be overcome, by liis assuming the attitude of a litigant, or by evidence showing that he did not keep it as a sej^aratc 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, generally, that the garnishee keeps the money by him, set apar for the payment of the attach- ment. 2. This presumption may be rebutted, either by the course of the garnishee in assnming the position of a litigant, or by any competent evidence : while in Virginia, the garnishee 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 probability is that eventually the rule, as laid down in Massachusetts, will be generally acquiesced in, § 6Q6. 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- 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, Avhen 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 1 Candee i'. "Webster, 9 Ohio State, 452. 2 Moore v. Lowrey, 25 Iowa, 336. [576] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 667 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." ^ § 667. 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.^ 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 gar- nishment, and not for any thing 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 when 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.^ 1 Sickman v. Lapsley, 13 Sergeant & 5 Ibid. 263 ; Osborne v. Jordan, 3 Gray, Rawle, 224. 277; Hancock v. Colyer, 9'J Mass. 187. 2 Williams v. A. & K. Railroad Co., * Wood v. Partridge, 11 Mass. 488; 36 Maine, 201. Hadley v. Peabody, 13 Gray, 200 ; 3 Wilcox V. Mills, 4 Mass. 218 ; San- Brackett v. Blake, 7 Metcalf, 335. ford V. Bliss, 12 Pick. 116 ; Meacham v. ^ Robinson v. Hall, 3 Metcalf, 301. McCorbitt, 2 Metcalf, 352 ; Allen v. Hall, See Daily v. Jordan, 2 Gushing, 390 ; 37 [577] § 669 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. So, where in an action arising from tort, a 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 20th 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 any thing not actu- ally payable when he was garnished.^ In New Hampshire, Alabama, Louisiana, California, and Tennessee, the same rule prevails.* § 668. This position must be distinguished from the ease of the garnishee's liability in respect of dehitum in prcesenti 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 garnishee's Hennessey v. Farrell, 4 Ibid. 267 ; Warner Payne v. Mobile, 4 Ibid. 333 ; Roby v. V. Perkins, 8 Ibid. 518 ; Strauss v. Rail- Labuzan, 21 Ibid. 60 ; Bean v. Miss, road Co., 7 West Virginia, 368. Union Bank, 5 Robinson (La.), 333; 1 Tbayer i'. Southwick, 8 Gray, 229. Smith v. B. C. & M. Railroad, 33 New 2 Haffey v. Miller, 6 Grattan, 454. Hamp. 337 ; Norris v. Burgoyne, 4 Cali- 3 Say ward v. Drew, 6 Maine, 263; fornia, 409; Davenport v. Swan, 9 Hum- Mace V. Heald, 36 Ibid. 136; Williams v. plireys, 186. A. & K. Railroad Co., Ibid. 201 ; Tyler ^ Branch Bank v. Poe, 1 Alabama, V. Winslow, 46 Ibid. 348. 396. 4 Branch Bank v. Poe, 1 Alabama, <> Ante, § 557. 396; Hazard v. Franklin, 2 Ibid. 349; [578] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. § 670 liability will be determined by the subsequent ascertainment 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 be- fore, but was not adjusted until after the garnishment ; and the company was held hable.^ 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 and 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 policy, to pay any thing.^ § 670. But while it is true that the garnishee's Hability 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 liabilities which existed at the time of the service, and thus the fund may be 1 Franklin F. I. Co. v. West, 8 Watts Fire Ins. Co. v. Field, 45 Penn. State, & Sergeant, 350. See Nevins (;. Rocking- 129 ; 3 Grant, 329. ham M. F. I. Co., 5 Foster, 22; Knox v. '^ Swamscot Machine Co. v. Partridge, Protection Ins. Co., 9 Conn. 430 ; Girard 5 Foster, 369. 3 Davis V. Davis, 49 Maine, 282. [579] § 671 EXTENT OF GARNISHEE'S LIABILITY. [CHAP. XXXV. 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 which 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 was 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 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 enti- tled to the set-off in the case in hand, he was discharged. ^ § 671. In New 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 1 Smith V. Stearns, 19 Pick. 20. See * Franklin F. I. Co. v. West, 8 W^atts post, §§ C83-C88. & Sergeant, 350 ; Silverwood v. Bellar, ^ Edgerley v. Sanborn, 6 New Hamp. 8 Wharton, 420; Siieetz v. Hobensack, 397. 20 Penn. State, 412. 3 Newell V. Ferris, 16 Vermont, 135 ; ^ There is no sufficient reason why Spring V. Ayer, 23 Ibid. 516. such statutory provisions should not be [580] CHAP. XXXV.] EXTENT OF GARNISHEE'S LIABILITY. §671 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, was 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.^ universally adopted, but cogent reasons ■why they should. The confinement of the operation of garnishment to the single point of time at which the garnishee is summoned, however sustained by high autliority, is contrary to the custom of London, out of which our systems of attachment laws have sprung, and mate- rially diminishes the usefulness and availability of the remedy. It would be wise, therefore, as has been recently done in Alabama and Missouri, to give garnishment the effect of holding, not only the effects in the garnishee's hands when summoned, but all coming into his hands between that time and the time of his answering. 1 Glenn v. Boston & Sandwich Glass Co., 7 Maryland, 287. 2 Patterson v. Perry, 5 Bosworth, 518 ; 10 Abbott Pract. 82. [581] § 672 a garnishee's right 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. § 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 ? The 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- ment is conclusive against 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- 1 Strong's Ex'r v. Bass, 35 Penn. Firebaugh v. Stone, 36 Missouri, 111 ; State, 333; Myers v. Baltzell, 37 Ibid. McDermott v. Donegan, 44 Ibid. 85; 491 ; Edson v. Sprout, 33 Vermont, 77 ; Ellison v. Tuttle, 26 Texas, 283. [582] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 674 a ing a suit against him who had previously been sumnionecl 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- 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 1 Webster v. Adams, 58 Maine, .317. Allen, 410 ; Riddle v. Etting, 32 Penn. ■-i Ilooton y. Gamage, 11 Allen, 354. State, 412; Howard v. Crawford, 21 3 Hinkie v. Currin, 1 Humphreys, 74 ; Texas, 399. See § 663. Baldwin v. Morrill, 8 Ibid. 132; Spring ^ Ellis u. Goodnow, 40 Vermont, 237. V. Ayer, 23 Vermont, 516; Thompson v. ^ Locke f. Tippets, 7 Mass. 149; West Wallace, 3 Alabama, 132 ; Price i-. Hig- v. Piatt, 110 Ibid. 308 ; Joiinson v. Carry^ gins, 1 Littell, 274; Gleason v. Gage, 2 2 California, 33 ; Home Mutual Ins. Co. [583] § 674 a garnishee's right of defence [chap, xxxvi. some States may Le clone, the ganiishment 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 garnisliment, bnt in ignorance of it, will liave the same effect ;2 but not if the agent knew of the gar- nishment.^ 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 paj'ment, 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 syndic 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 payment of the claim for storage, for which a lien on the iron existed ; and on the presen- tation of these facts to a coui't 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 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 V. Gamble, 14 Missouri, 407 ; PuUiam v. 35 ; Johann v. Hufener, 32 Wisconsin, Aler, 15 Grattan, 54 ; Wilder v. Weather- 195. head, 32 Vermont, 765 ; Cleneay v. June- ^ Robinson v. Hall, 3 Metcalf, 301 ; tion R. R. Co., 26 Indiana, 375 ; Toledo, Thorne v. Matthews, 6 Cushinif, 544. W. & W. R. R. Co. V. McNulty, 34 ■^ Spooner v. Rowland, 4 Allen, 485. Ibid. 531; Hughes v. Monty, 24 Iowa, 3 Conley v. Chilcote, 25 Ohio State, 499; Parker v. Parker, 2 Hill Cli'y, 320. [584] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 674 d forced the surrender of the iron, by suit, without repaying the chai"ges upon it to either B. or the syndic.^ § 674 h. The time at which a payment by a garnishee to a de- fendant was made, may become material in reference to his lia- 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, if 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 will not prevent 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 liability, because of the misnomer in the writ ; but the defence was overruled, and the garnishee charged.'^ § 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 1 Mobile & Ohio R. R. Co. v. Whitney, 2 Harris v. Somerset & K. R. R. Co., 39 Alabama, 468. 47 Maine, 298. 3 Paul V. Johnson, 9 Philadelphia, 32. [585] § 675 garnishee's eight of defence [chap, xxxvi. might at pleasure revoke the check, and that the giving of it was no pa3"ment ; and he was charged.^ § 674 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.^ § 674/. 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, though the judgment discharging him be afterwards reversed.^ § 675. While a voluntary payment, after garnishment, will not discharge the garnishee's liability, a payment under a previous 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.* But a payment made by a garnishee under an execution against 1 Dennie v. Hart, 2 Pick. 204. In by B., and was in his hands at the time Barnard v. Graves, 16 Pielc. 41, the of tiie garnisliment. The above case of town of Worcester was summoned as gar- Dennie v. Hart was relied on as estab- nishee of A., and answered, sliowing that lishing that tlie giving of the check was defendant was employed by tlie town ; no payment by the town ; but tlie court that on a certain day a settlement of said : " In tlie case of Dennie ?'. Ilart, accounts was had between A. and the the court considered the transaction town, when the selectmen gave him a merely colorable ; that the depositary of check on a bank for $210; that there the check was the agent of the trustee being, however, a debt due from him to himself; and that the trustee had the the town, the amount of which was not control of it, and might revoke it when then ascertained, it was agreed that the he pleased ; and the decision went on amount of the debt, when ascertained, that ground. In the present case, we should be deducted from the sum to be think the depositary was not tiie agent obtained by the check ; that this debt of the town, but of A., to receive and was afterwards found to amount to appropriate the amount of the check, and $67.58 : that the defendant being also that the town could not control or revoke indebted to one B. in the sum of $19.77, it. The check, therefore, was a payment it was further agreed by the selectmen of the debt due from the town to A." and the defendant, that the check should ^ Jgwett v. Bacon, 6 Mass. 60 ; Nash be placed in B.'s hands, and the amount v. Brophy, 13 Metcalf, 476. thereof paid to him by the bank, in order ^ Webb v. Miller, 24 Mississippi, 638. that he might retain the sums due from * New Orleans M. & C. R. R. Co. v. the defendant to the town and to himself; Long, 50 Alabama, 498. and the check was accordingly received [586] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 679 him as such, will not avail, where, before payment, 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 noti- fied 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.^ § 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- ment.* § 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 of 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, 1 Watkins v. Cason, 46 Georgia, 444. ^ Hinkle v. Currin, 2 Humphreys, 137 ; 2 Home Mutual Ins. Co. v. Gamble, Benton v. Lindell, 10 Missouri, 557 ; Gee 14 Missouri, 407. v. Gumming, 2 Haywood (N. C.), 398; 8 Rochereau v. Guidry, 24 Louisiana Gee v. Warwick, Ibid. 354 ; Hazen v. Annual, 294. See Ohio & M. II. W. Co. Emerson, 9 Pick. 144 ; James v. Fellowes, V. Alvey, 43 Indiana, 180. 20 Louisiana Annual, IIG. * Sturtevant v. Kobinson, 18 Pick. 175. [587] § 682 garnishee's right of defence [chap, xxxvi. and wliich 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 B. had no cause of action against A., and tliat 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 any thing to meet a contingent 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 they 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 ; 1 Sheldon v. Simonds, Wright, 724. 3 Qiassell v. Thomas, 3 Leigh, 113. See Mathis v. Clark, 2 Mills' Const. Ct. * Williamson v. Gayle, 7 Grattan, 152. 456 ; Russell v. Hinton, 1 Murphey, 468; * Jones v. Tracy, 75 Penn. State, 417. Moser v. Maberry, 7 Watts, 12 ; Ball v. ® Jackson v. Shipman, 28 Alabama, Citizens' Nat. Bk., 39 Indiana, 364. 488. 2 Jewett V. Bacon, 6 Mass. 60. [588] I CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 683 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, the 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 de- fendant 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 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 be- yond their reach, by depositing it with an attorney, to be held nominally for future services to be rendered in whatever litiga- tion the debtor might be engaged." ^ § 682 h. 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 e. The garnishee cannot escape liability, by showing that the defendant's money in his hands had been received by 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 1 Smith V. B. C. & M. Railroad, 33 ' First Baptist Churcla v. Hyde, 40 New Ilamp. 337. Illinois, 150. ■^ Grain v. Gould, 46 Illinois, 293. *■ Thayer v. Partridge, 47 Vermont, 423. [589] § 684 garnishee's right of defence [chap, xxxvi. rule is well established, that the rights of the garnishee shall not be distuibed by the garnishment. Whatever claim, therefore, he has against the defendant, and of which he could avail himself bv set-off in an action between them, will be equally available to him in the same way, in the garnishment proceeding.^ And 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 can- not object to it ; for that plea is a personal privilege which may be waived, and having been waived by the garnishee, his pay- ment cannot be assailed on that ground.^ § 684. The claim which the garnishee seeks to 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- 1 Picquet v. Swan, 4 Mason, 443; either by the common or statute law, if Ashby V. Watson, 9 Missouri, 236; Beach tlie action were brouglit by tlie defend- V. Viles, 2 Peters, 675 ; Mattingly v. ant himself against the trustee. One of Boyd, 20 Howard Sup. Ct. 128 ; Arledge the common and material elementary V. White, 1 Head, 241 ; Ranking. Simonds, principles applicable to the doctrine of 27 Illinois, 352 ; Sampson v. Hyde, 16 set-oil, is, that the claims between the New Hamp. 492 ; Brown v. Warren, 43 parties should be mutual in their char- Ibid. 430; Strong's Ex'r v. Bass, 35 acter, and should exist at the time of Penn. State, 833; Nesbitt v. Campbell, the commencement of the suit." Wheeler 5 Nebraska, 429. In New Hampshire v. Emerson, 45 New Harap. 526. the rule on this subject was thus stated : - McCoy v. Williams, 6 Illinois (1 " The principle is well settled, that the Oilman), 584. trustee may retain in his hands, of the •< Thomas v. Hopper, 5 Alabama, 442. funds of the debtor, an amount equal to * Gray v. Badgett, 5 Arkansas, 16. all sums, of which said trustee might ^ Blanchard i'. Cole, 8 Louisiana, 160; legally or equitably avail himself by way Wells v. Mace, 17 Vermont, 503. See of set-ofF, by any of the modes allowed Norcross v. Benton, 88 Penn. State, 217. [590] CHAP. XXXVI.] AGAESrST HIS LIABILITY TO DEFENDANT. § 685 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 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 de- fendant 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 stat- ute to recover back " in an appropriate action ; " it was held, that where a statute confers a remedy unknown to the common 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 Avill 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 anstver becomes mdebted 1 Hathaway v. Russell, 16 Mass. 473. 15-5. See Shaw v. Peckett, 26 Vermont, 2 Manufacturers' Bank v. Osgood, 12 482; Camden v. Allen, 2 Dutcher, 398; Maine, 117. Pierce v. Boston, 3 Metcalf, 520; Perry •* Brown v. Warren, 43 New Hamp. v. Washburn, 20 California, 318; May- 430. hew V. Davis, 4 McLean, 213. * Johnson v. Howard, 41 Vermont, 5 Thayer v. Partridge, 47 Vermont, 122 ; Hibbard i;. Clark, 56 New Hamp. 423. [591] § 686 garnishee's right of defence [chap, xxxvi. 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 \vas, at the same time, liable as accommodation indorser of a note of the defendant for a larger amount, which became due after the garnishment, and was protested for non-payment, and the gar- nishee paid it before he made his answer; the court held, that lie could set off the amount of the note against his debt to the de- fendant; 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,* even though after • Boston Type Co. v. Mortimer, 7 chants' Bank v. Franklin Bank, 31 Mary- Pick. 166 ; Allen v. Hall, 6 Metcalf, 263 ; land, 404. Swamscot Machine Co. v. Partridge, 5 - Boston Type Co. v. Mortimer, 7 Foster, 369 ; Boardman v. Cushing, 12 Pick. 166. New Hamp. 105; Boston & Maine Rail- * Edwards v. Delaplaine, 2 Harring- road V. Oliver, 32 Ibid. 172 ; Strong v. ton, o22. Mitchell, 19 Vermont, 644 ; Smith v. * Field v. Watkins, 5 Arkansas, 672. Stearns, 19 Pick. 20; Farmers & Mer- [592] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 686 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- 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 |900 ; 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 1 Watkins v. Field, 6 Arkansas, 391. ^ Parsons v. Eoot, 41 Conn. 161. 2 Ingalls V. Dennett, G Maine, 79. * Selfy. Kirkland, 24 Alabama, 275. 38 [593] § 688 garnishee's right of defence [chap, xxxvi. 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 defendant in any other suit, but subject to the same rules and re- strictions; 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. Neither is al- lowed to get the whip hand and souse the other in costs, hy starti^ig before he was ready." ^ § 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 gar- nishee, alleging the existence of the set-off before the garnish- ment, must support his 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 ujjon a liquidation of all demands. In striking such balance he has a right to set off, 1 Taylor v. Gardner, 2 Washington * Dyer v. McHenry, 13 Iowa, 527; C. C. 488. Grain v. Gould, 46 Illinois, 293 ; Wheeler 2 Pennell v. Grubb, 13 Penn. State, v. Emerson, 45 New Hamp. 526 ; Farmers' 552. Bank v. Gettinger, 4 West Virginia, 305 ; 8 Pennell v. Grubb, 13 Penn. State, Seamon v. Bank, Ibid. 339. 652. 6 Ante, § 685. [594] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 688 from the debt which he acknowledges he owes the principal, any demand whicli he might set off in any of the modes allowed either b}^ statute or common law, or in any course of proceeding.^ The following intricate and interesting case occurred in that State. A., B., C, D., E., and F., owners of the ship Bristol, were summoned as garnishees of W. & W., to whom they were indebted in the sum of -$8,463.02. But it appeared that W. & W. were indebted to D., E., and F., and the question arose Avhether the latter could set off the indebtedness of W. & W. against their respective proportions of liability as owners of the Bristol, to W. & W. The court, on this subject, take the following ground : " This right of set-off, when a part only of the debtors on the one side are creditors on the other, was formerly doubted ; but is now well established in courts both of law and equity. The right in the case at bar does not depend on any statute provisions, but arises from the nature of the suit into which the trustee is thus incidentally introduced as a party. In this suit he is called upon to answer for all the goods, effects, and credits of the de- fendants in his hands, without regard to the nature of the de- mands, or to the form of action in which they would be recovered by the defendant, and even if they should be of several different kinds, requiring different forms of action. On the other hand, he is to be allowed all his demands against the defendant, of which he could avail himself in any form of action, or any mode of proceeding between himself and the defendant ; whether by way of set-off on the trial, as provided by our statutes ; or by setting off the judgments under an order of court; or by setting off the executions in the hands of the sheriff, as is also provided by statute. If this were not so, the trustee would be injured by having his claims thus drawn in, to be settled incidentally in a suit between strangers. In this adjustment of their mutual claims, we of course except, on both sides, all claims for unliqui- dated damages for mere torts." The court then take as the basis of its judgment the entire indebtedness of the owners of the Bristol to W. & W., and as the result of the position just quoted, direct to be deducted from that indebtedness all that was due from W. & W. to eitlier of the six owners. But here another question arose. It will be remembered that W. & W. were in- debted to D., E., and F., and it so happened that this indebtedness I Smith V. Stearns, 19 Pick. 20. [595] § 688 garnishee's right of defence [chap, xxxvi. was not to either D., E., or F., alone, but to each of them jointly with other parties not concerned in the proceedings. Thus D. was owner of one-sixteenth part of the ship India, to the owners of which ship W. & W. were indebted in the sura of $5,382.76. So, also, was E. owner of the same part of the same ship. F. was owner of one-eighth part of the ship Lydia, to the owners of which ship W. & W. were indebted in the sum of $7,560. Now, the proportion of D., E., and F., in the debt of the Bristol to W. & W., was 11,410.50. The proportion of D. and E., each, in the debt of W. & W. to the owners of the India was $333.29 ; and the proportion of F. in the debt of W. & W. to the owners of the Lydia was $945. D., E., and F., each claimed to deduct from the $1,410.50 their respective proportionate shares of the debts due from W. & W. to the owners of the India and the owners of the Lydia as aforesaid. On this point the court say : "Now, as neither D., E., nor F. could have brought an action against W. & W. for the j)roportion due to each of them, as part- owners of the ships India and Lydia, respectively, it seems difficult to set off that proportion against the claims of W. & W. On the other hand, it is an invariable principle, in every suit of this kind, that the trustee shall not be prejudiced by being made a party in a suit between strangers ; and it would be highly preju- dicial and injurious to him, if he were compelled to pay money, as due to one of the parties in the suit, when that same party was indebted to him in another sum which he might be unable to pay." The court proceed with the argument of the case, and finally arrive at the conclusion expressed in the following lan- guage : " In this suit a demand is made on the trustee, without any regard to technical forms, to pay whatever effects of the defendant he may have in his hands ; and those effects are only what remains, after deducting all that he could retain or set off, in any lawful mode of adjustment between himself and the defend- ant, without regard on his part to mere technical forms. The leg- islature certainly intended that all just and reasonable allowances should be made to the trustee, to protect him from injury ; and it is our business to make the forms of proceeding yield, in every case, to the principles of law and justice ; and not to leave the will of the legislature unaccomplished, from a scrupulous adhe- rence to technical rules. The parties will compute the amount due from each of the trustees, after allowing, according to these [596] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 689 principles, the set-offs claimed by each ; and the judgments will be entered accordingly." ^ A later case was decided on principles of as free equity as that just considered. A testator devised and bequeathed all his prop- erty to W.jOn condition that he should pay all the testator's debts, and the legacies given by his will ; and he also appointed W. executor of his will. Among the legacies was one of $200 to R., which was to be paid in two years after the testator's decease. When the will was made, the testator held several promissory notes against R., amounting to $322, which were over due. W. accepted the devise and bequest made to him, but declined the trust of executor ; and administration on the testator's estate, with the will annexed, was granted to a third person. G. brought an action against R., and summoned W. as R.'s trustee ; and it was held, that R.'s notes, though payable to the testator, and in form to be collected in the name of his legal representative, were really the property of the defendant, and were a valid set-off, in the hands of W., against the amount which he was bound as legatee to pay to R., and, being greater in amount than the legacy due R. from W., the latter was not liable as trustee.^ § 688 a. While the garnishee's right of set-off is ordinarily unquestionable, he may sustain such a relation to the defendant, 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 against the defendant by way of set-off. Therefore, where the garnishee had in his hands a sum of money belonging to the defendant, 1 Hathaway v. Russell, 16 Mass. 473. 3 Yox v. Reed, 3 Grant, 81. ^ Green v. Nelson, 12 Metcalf, 567; * Weller y. Welier, 18 Vermont, 55. Nickerson v. Chase, 122 Mass. 296. [597] § G89 garnishee's right of defence [chap, xxxvi. being a balance of the proceeds of property conveyed to him in trust to secure a debt due to him, but insisted upon his riglit to appropriate that balance to the paj^ment 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. The court in giving their opinion use the following language : " It is certainly true that the plaintiff in the garnishment, being substituted to the legal rights of his debtor, to be enforced in this summary way, cannot maintain this proceeding to recover an equitable demand, — one upon which the debtor could not have maintained his action at law. The same principle which would limit the plaintiff to a legal ground of action would equally apply to the defendant : he must be confined to such defences as he could have made, had his debtor, instead of the creditor of his debtor, instituted legal proceedings against him. This would seem to result from the want of adaptation in the forms of the court of law to do com- plete equity between the parties. If the defendant could be allowed to set up an equitable defence, while the plaintiff was confined down to his legal right of action, there would seem to be a want of mutuality in the proceeding, and the greatest injus- tice might sometimes be done. The plaintiff might have an equitable demand which Avould countervail that set up by the defendant, yet he would be unable to subject the legal demand, inasmuch as the defendant could, and he could not, set up his equitable one. Besides, in many cases it would be impossible for the court of law to adjust properly the equities between the parties, even if it possessed the jurisdiction. Such a practice of blending the legal and equitable jurisdiction of the courts, would, under their present organization, introduce the greatest confu- sion, uncertainty, and difficulty. The view we take is, we think, clearly indicated by the whole tenor of our decisions, and must be sustained so long as the jurisdiction of courts of equity is kept distinct from that of the law courts. If S. & Co., the payees of the note, retained the legal title, it is well settled, that, had the defendant instituted his action of assumpsit, to recover from the garnishee the balance due after satisfying the mortgage deed, [598] CHAP. XXXVI.] AGAINST HIS LIABILITY TO DEFENDANT. § 690 a the latter could not have set off the amount of the note to S. & Co. in such suit, however strong may have been his equity. We think he stands in the same condition with respect to the plain- tiff in the garnishment. If he has a set-off which is equitable^ he must assert it in a court of equity, where, for aught we can know, it may be rebutted or repelled, and countervailed by supe- rior equities." ^ § 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 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- 1 Loftin V. Shackleford, 17 Alabama, Doyle v. Gray, 110 Ibid. 20G ; Rankin v. 455 ; Self i;. Kirkland, 24 Ibid. 275. Simonds, 27 Illinois, 352. 2 Powell V. Sammons, 31 Alabama, ' Cota v. Mishow, 62 Maine, 124. 652; Faxon v. Mansfield, 2 Mass. 147; * Brown v. Brown, 55 New Hamp. 74. [599] § 600 garnishee's eight of defence, etc. [chap. XXXVI. 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 ofl&cer, at the time of the attachment.^ 1 Thompson v. Allison, 28 Louisiana Annual, 733. 2 Allen V. Hall, 5 Metcalf, 263. [600] CHAP. XXXVII.] garnishee's RELATION, ETC. § 692 CHAPTER XXXVII. THE garnishee'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 liis 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.3 This it will 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 as- pects : 1. Where the defendant is personally served with process ; and 2. Where the proceeding is ex parte, without any service of 1 Ante, § 451 h. ^ Douglass v. Neil, 37 Texas, 528. 2 Ante § 674 a. * Haynes v. Gates, 2 Head, 598. [GOl] § 693 garnishee's relation, etc. [chap, xxxvii. process on, or appearance by, tlie defendant, and where jurisdic- tion is acquired over him tlirougli an attachment of his property. In the first case, the jurisdiction obtains through the service of the proces:^ on the defendant : tlie 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, tlie attachment is the basis of the jurisdic- tion. If it be issued without legal authority, any proceedings under it are coram non judice 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 sufficiency 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- larity as against the defendant ; and 2. Where the defendant is not personally before the court, the garnishee is concerned only 1 Featherston v. Compton, 3 Louisiana Annual', 380 ; Washburn v. N. Y. & V. M. Co., 41 Vermont, 50. 2 Ante, §§ 87 a, 87 b, 87 c, 88. [6U2] CHAP. XXXVII.] garnishee's RELATION, ETC. § 696 in the question of jurisdiction ; for if that has attached, and the judgment of the court will be conclusive as to the rights of jjrop- 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 th§ 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.'^ § 696. Such are the principles which are considered to govern this subject. We will briefly present their operation, as exhibited 1 Wyatt's Adm'r v. Rambo, 29 Ala- See National Bank v. Titsworth, 73 lUi- bama, 510 ; Gunn v. Howell, 35 Ibid. 144. nois, 591. ■'' Gould V. Meyer, 36 Alabama, 565. [603] § 696 garnishee's relation, etc. [chap, xxxvii. 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 Avas 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 proceedii]gs were illegal and void ; ^ 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. 2 In 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 protection to the garnishee.'' In Missouri, it was held, in a garnishment proceed- ing under execution, that the garnishee might resist his liability on the ground that the judgment on which the execution was issued was void.^ In Vermont, it was held, that where there was no ser- vice 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 proceeding.^ In Ohio, where the statute provides that an attachment shall not be 1 Oldham v. Ledbetter, 1 Howard ^ Webb v. Lea, 6 Yerger, 473. (Mi.), 43; Berry v. Anderson, 2 Ibid. ^ Featherston t'. Compton, 8 Louisiana 649 ; Ford v. Woodward, 2 Smedes & Annual, 285. Marshall, 260. ^ Robertson v. Roberts, 1 A. K. Mar- 2 Ford V. Hurd, 4 Smedes & Mar- shall, 247. shall, 683. 8 Smith v. McCutchen, 38 Missouri, 3 Harmon iJ.Birchard, 8 Blackford, 418. 415. * Dew V. Bank of Alabama, 9 Ala- ^ Washburn v. N. Y. & V. M. Co., 41 bama, 323. Vermont, 50. [604] CHAP. XXXVII.] garnishee's RELATION, ETC. §696 granted on the ground of the non-residence of the defendant, " for any claim other than a debt or demand arising upon con- tract, 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 ac- quired; 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.^ 1 Pope V. Hibernia Ins. Co., 24 Ohio State, 481. 2 Pierce v. Carleton, 12 Illinois, 358 ; Atcheson v. Smith, 3 B. Monroe, 502; Wliiteliead v. Henderson, 4 Sniedes & Marsliall, 704; Matthews v. Sands, 29 Alabama, 136 ; Flash v. Paul, Ibid. 141 ; Uesha v. Baker, 3 Arkansas, 509 ; Love- joy V. Albree, 33 Maine, 414 ; Edrington V. Allsbrooks, 21 Texas, 186 ; Greene v. Tripp, 11 Rhode Island, 424. 3 Shivers v. Wilson, 5 Harris & John- son, 130 ; Yerby v. Lackland, 6 Ibid. 446 ; Bruce v. Cook, 6 Gill & Johnson, 345. In the first of these cases the court say : " No position in law is more clearly es- tablished, than that a defendant in a cause, before a court of general jurisdic- tion, must, if he wishes to avail himself of the disability of the plaintiff to sue, do so by a plea in abatement ; and no principle of law is more evident, than that where the tribunal is of a limited jurisdiction, or the proceedings are par- ticularly described by a statute made on tlie subject, that course of procedure, 80 described, must, on the face of the record, appear to liave been, if not liter- ally, at least substantially, complied with; or the case must by the proceed- ings disclose itself to be within the lim- ited jurisdiction. It follows, from the preceding principles, that the decision of the court below [which in effect quashed the attachment and discharged the gar- nishee] must be sustained, if it had but a limited jurisdiction, or if its course of proceeding was of a circumscribed de- scription, unless, on the ftice of the record, the case shall appear to have been within the jurisdiction, or the course of pro- ceeding directed by law to have been substantially complied with. . . . The record before the court in this case, in no part of it brings the plaintiff within that description of persons who had a right to issue, or cause the attachment to have issued. The right to condemn the property in favor of such a plaintiff is by no law vested in the court before whom the cause was tried, or in any other court." 4 Barr v. Perry, 3 Gill, 313. 5 Stone V. Magruder, 10 Gill & John- son, 383; Clarke v. Meixsell, 29 Mary- land, 221. [605] §697 garnishee's relation, etc. [chap. XXXVII. § 697. When, however, the jurisdiction of the court over both the defendant and the garnishee has attached, the right of the Litter 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 and irregularities for which the defendant might obtain their re- versal, 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 1 Atcheson v. Smith, 3 B. Monroe, 502 ; Lomerson v. Hoffman, 4 Zabriskie, 674 ; Pierce v. Carleton, 12 Illinois, 358 ; Houston V. Walcott, 1 Iowa, 8G ; Steb- bins V. Fitcli, 1 Stewart, 180 ; Parmer v. Ballard, 3 Stewart & Porter, 326 ; Thomp- son V. Allen, 4 Ibid. 184 ; Gunn v. Howell, 35 Alabama, 144 ; O'Connor v. O'Connor, 2 Grant, 245 ; Sclioppenliast v. Bollman, 21 Indiana, 280 ; Ohio & M. R. W. Co. V. Alvey, 43 Ibid. 180. 2 Stebbins v. Fitch, 1 Stewart, 180; Parmer v. Ballard, 3 Ibid. 326 ; Thomp- son V. Allen, 4 Stewart & Porter, 184; Smith V. Chapman, 6 Porter, 365 ; St. Louis Perpetual Ins. Co. v. Cohen, 9 Missouri, 421; Houston v. Walcott, 1 Iowa, 86 ; Matheny v. Galloway, 12 Smedes & Marshall, 475 ; Whitehead v. Henderson, 4 Ibid. 704 ; Erwin t;. Heath, 50 Mississippi, 795 ; Flash v. Paul, 29 Alabama, 141 ; Camberford v. Hall, 3 McCord, 345; Foster v. Jones, 1 Ibid. 116; Chambers v. McKee, 1 Hill (S. C), 229 ; Lindau v. Arnold, 4 Strobhart, 290 ; Cornwell v. Hungate, 1 Indiana, 156; White V. Casey, 25 Texas, 552. In Ser- geant on Attachment, 100, it is said : " On this plea oi nulla bona, the garnishee may take advantage of the irregularity of the plaintiff's proceedings in entering judgment against the defendant in the attachment, without having executed [606] a writ of inquiry, when the declara- tion was in Assumpsit ; " and reference is made to the case of Pancake v. Har- ris, 10 Serg. & Rawle, 109. It is con- ceived that his statement is not sus- tained by the case as reported. It does not appear that the garnishee made the point which controlled the decision ; but we are authorized to infer that the court, ex mero itiotu, ruled the plaintiff out, on a point of practice. The plaintiff had not perfected his judgment against the de- fendant, by an ascertainment of the amount, without which it was clearly im- practicable for a judgment to be rendered against the garnishee ; since it is well settled, that a judgment against the de- fendant is an indispensable prerequisite to a judgment against the garnishee. It was expressly on the ground that the plaintiff had not perfected his judgment against the defendant, or, in other words, had obtained only an interlocutory, and not a final, judgment, that the decision was given. » Douglass V. Neil, 37 Texas, 528. * Hanna v. Lauring, 10 Martin, 563 ; Kimball v. Plant, 14 Louisiana, 511 ; Frazier v. Willcox, 4 Robinson (La), 517 ; Erode v. J'iremen's Ins. Co., 8 Ibid. 244 ; Planters' and Merchants' Bank v. Andrews, 8 Porter, 404. CHAP. XXXVII.] garnishee's RELATION, ETC. § 698 defendant against the plaintiff's demand ; ^ 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 plain- tiff and defendant. He is not an assignee of the judgment against the defendant, nor has he any lien upon it ; but in rela- tion 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 against himself, take advan- tage of that invalidity to prevent such judgment.* § 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 Moore v. C, R. I., & P. R. Co., 43 3 Braynard v. Burpee, 27 Vermont, Iowa, 385. 616. 2 Woodbridge v. Winthrop, 1 Root, * Thayer v. Tyler, 10 Gray, 164; 557 ; Heffernan v. Grymes, 2 Leigh, 512; Pratt v. Cunliff, 9 Allen, 90; Woodfolk Lee V. Palmer, 18 Louisiana, 405 ; Bank v. Whitworth, 5 Coldwell, 561 ; Erwin v. of Northern Liberties v. Munford, 3 Grant, Heath, 50 Mississippi, 795. 232 ; Hodges v. Graham, 25 Louisiana ^ AUard v. DeBrot, 15 Louisiana, 253. Annual, 365. [607] §700 WHERE ATTACHMENT IS A DEFENCE. [CHAP. XXXVII. 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 confiscation, for the plaintiff'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 liable 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 defendant in the attachment, before judgment of condemnation of the debt, sues the garnishee for that debt, the latter may plead the attachment in abatement ; ^ but not in bar, until judgment be recovered against him.^ It is no case for an interpleader.^ 1 Brook V. Smith, 1 Salkeld, 280. 3 Evans v. Matlock, 8 Philadelphia, 2 Nathan v. Giles, 6 Taunton, 558. 271. [608] CHAP. XXXVin.] 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 de- fendant would be left without protection, and be obliged to pay the money twice : for we may 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 presume 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 founded on a bond 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 Hampshire,^ by the Supreme Courts of Maine,^ Pennsylva- nia,^ Michigan,^ and lowa,^ by the Court of Appeals of Maryland,''' by the Circuit Court of the United States for the Third Circuit,^ and by the Supreme Court of the United States.^ 1 Embree v. Hanna, 5 Jolins. 101. ^ ciise v. Freeborne, 27 Iowa, 280. 2 llaselton v. Monroe, 18 New Hamp. '' Brown v. Somerville, 8 Maryland, 598. 444. 8 Ladd V. Jacobs, 64 Maine, 347. ^ Cheongwo v. Jones, 3 Washington * Fitzgerald v. Caldwell, 1 Yeates, C. C. 359. 274 ; Irvine v. Lumbermen's Bank, 2 ^ Wallace v. McConnell, 13 Peters, Watts & Sergeant, 190 ; Adams v. Avery, 136; Mattingly v. Boyd, 20 Howard Sujj. 2 Pittshurgli, 77. ' Ct. 128. 5 Near v. Mitchell, 23 Michigan, 382. 39 [609] § 701 WHERE ATTACHMENT IS A DEFENCE. [CHAP. XXXVIII. § 701. In Massachusetts, the pendency of an attachment is no cause to abate tlie writ ; for non constat 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 sta}^ 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 ap- propriate conclusion is, a prayer of judgment of the writ, and tliat 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 in 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 to pay the debt twice, or the creditor might be injuriously affected. All these consequences are avoided by considering it as cause for suspending the action of the creditor, until the at- tachment against his debtor is determined, when it can be 1 Winthrop v. Carleton, 8 Mass. 456. Spicer v. Spicer, 23 Ibid. 678 ; Jones v. •■2 Carroll v. McDonogh, 10 Martin, Woocl, 30 Ibid. 2G8. 609. * Crawford v. Clute, 7 Alabama, 157. 3 Morton v. Webb, 7 Vermont, 123 ; [610] CHAP. XXXVIII.] AND THE IMANNER OF PLEADING IT. 701 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.3 In California that doctrine was fully concurred in.* In Georgia, the pendency of an attachment is not pleadable in 1 Crawford v. Slade, 9 Alabama, 887. 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. '■> Smith V. Blatchford, 2 Indiana, 184. 4 McFadden v. O'Donnell, 18 Califor- nia, 160; Pierson v. McCaliill, 21 Ibid. 122; McKeon v. MeDermott, 22 Ibid. 667. 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 seriously suffer, by postponing the secur- ing of the garnishee's debt to him, until liis litigation with the plaintiff is termi- nated. The 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 by 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 judgment before the garnishment, and the money to be collected and held subject to the attachment. Views which would sustain those here expressed were announced by the Supreme Court of Vermont, in Hicks v. Gleason, 20 Ver- mont, 139, 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 which would interfere with their subjection to the payment of the plaintiff's demand ; and that for every purpose of making any demand which may be necessary to fix the garnishee's liability to the defendant, or of securing it by legal proceedings or otherwise, the defendant's rights remain unimpaired by the garnishment ; but can be exer- cised only in subordination to the lien thereby created. [611] § 702 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. 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.^ § 702. In England, an attachment cannot be pleaded jom/s 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 judg- ment, 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 puis 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 sus- tained.^ But where the action and the attachment were in courts of different 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 this point the following views are expressed : " The plea shows that the pro- ceedings on the attachment were instituted after the commence- 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 attached, that right could not be arrested or taken awa}' by any proceedings in another court. This would produce a collision in the jurisdiction of courts, that would ex- tremely 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 j9rc» tanto^ under a recovery had by virtue of 1 Shealy v. Toole, 56 Georgia, 210. 3 McCarty v. Emlen, 2 Yeates, 190. 2 Priv. Lond. 272; 3 Leonard, 210; < See Chapter XXXII. Palmer v. Hooks, 1 Ld. Raymond, 727; ^ Hitt v. Lacy, 3 Alabama, 104. Savage's Case, 1 Salkeld, 291. [612] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 703 h 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 ujjon 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."^ § 703. Manifestly, a pending attachment should have no effect upon an action by the creditor against his debtor, unless the at- tachment 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 de- fence.^ § 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 h. As we have seen, a plaintiff may, by garnishment, at- tach a debt due from himself to the defendant ; * but this will not 1 Wallace v. McConnell, 13 Peters, 136. » Mason v. Noonan, 7 Wisconsin, 609. 2 Clark V. Great Barrington, 11 Pick. * Ante, § 543. 260. [613] § 704 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. antliorize liim 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 adversai'y." ^ § 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 Massachusetts to his liability to the defendant after the termina- tion of the attachment suit. It was there held, that where inter- est accrues by way of damages for the non-payment of the debt, it cannot be recovered by the defendant of 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 1 New England Screw Co. v. Bliven, * Oriental Bank v. Treniont Ins. Co., 3 Blatcliford, 240. 4 Met(;alf, 1 ; Bickford v. Rice, 105 Mass. ■^ Ante, § 665. 340; Huntress v. Burbank, 111 Ibid. 213. [614] CHAP. XXXVTIL] and THE MANNER OF PLEADING IT. § 705 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 unreasonable 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 any thing 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, there- fore, be charged with interest during the pendency of the attach- ment.^ § 705. In pleading a pending attachment in abatement, the plea must contain averments of all the facts necessary to give the court in which the attachment is pending jurisdiction, 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 ex- ecution issued for an order to enter satisfaction of the judgment 1 Fitzgerald v. Caldwell, 2 Dallas, 215; ♦ Crawford v. Clute, 7 Alabama, 157; Weber v. Carter, 1 Pliiladelpliia, 221. Crawford v. Slade, 9 Ibid. 887. '^ Updettrati v. Spring, 11 Sergeant & ^ Baltimore & 0. R. 11. Co. v. May, 25 Rawle, 188. Ohio State, 347. * Willing V. Consequa, Peters C. C. 301. [615] § 706 a WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. on which it is based. It is not a case for the interposition of a court of chancery.^ § 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 lias satisfied it in due course of law, such judgment is conclusive, against parties and privies, of all matters of right and title decid- ed by the court, and coustitutes a complete defence to any sub- sequent 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 course, such a judg- ment 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 plaintiff's claim 1 Chandler v. Faulkner, 5 Alabama, Fitch, 1 Sandford Ch'y, 142; Noble v. 567. . Thompson Oil Co., 69 Penn. State, 409; - Post, § 710 ; Killsa v. Lerniond, 6 Morgan v. Neville, 74 Ibid. 52 ; Baltimore Maine, 116 ; Holmes v. Remsen, 4 John- & O. R. R. Co. v. May, 25 Ohio State, son Ch'y, 460; 20 Johnson, 229; Hitt 347; Wigwall v. Union C. & M. Co., 37 V. Lacy, 3 Alabama, 104 ; Foster v. Iowa, 129. Jones, 15 Mass. 185 ; Mills v. Stewart, * Wise v. Hilton, 4 Maine, 435 ; Olin 12 Alabama, 90; Ross v. Pitts, 39 Ibid. ?;. Figeroux, 1 McMullan. 203 ; Miller v. 606; Moore v. Spackman, 12 Sergeant McLain, 10 Yerger, 245; Lawrence v. & Rawle, 287; Coates v. Roberts, 4 Lane, 9 Illinois (4 Oilman), 354; Cooper Rawle, 100 ; Anderson v. Young, 21 v. McClun, 16 Ibid. 4.35 ; Gates v. Kerby, Penn. State, 443; Cheairs v. Slaten, 3 13 Missouri, 157 ; Funkhouser w. IIow, 24 Humphreys, 101; Adams v. Filer, 7 Wis- Ibid. 44; Dobbins v. Hyde, 37 Ibid. 114; consin, 306. Wilson v. Murphy, 45 Ibid. 409; Mankin 3 Barrow v. West, 23 Pick. 270 ; Tay- v. Ciiandler, 2 Brockenbrough, 125 ; lor r. Phelps, 1 Harris & Gill, 492 ; Gunn Lyman v. Cartwright, 3 E. D. Smith, V. Howell, 35 Alabama, 144; Cochran v. 117. [616] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 707 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 chai'ged 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 obliged 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 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 thera 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 ex- isting at the time of the discharge.^ Nor does a judgment in 1 Lyford v. Demerritt, 32 New Hamp. 234. 2 Puffer V. Graves, 6 Foster, 258. [617] § 708 "WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. favor of (lie g^arnisliee in one attachment suit preclnde 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 adjudicata, 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 indebted- ness 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 defendant, to the extent of the amount so paid, is the judgment alone, without satisfaction, such a bar? On this point the au- thorities 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.^ 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, 1 Spruill V. Trader, 5 Jones, 39; was defaulted, and judgment was ren- Breading v. Siegworth, 29 Penn. State, dered against the goods, effects, and 396. credits of the defendant in liis hands ; 2 Robeson v. Carpenter, 7 Martin, and afterwards on scire/acias, he appeared N. 8. 30; Brown v. Dudley, 33 New and disclosed to the court that he was Hamp. 511 ; Cameron v. Stollenwerck, not liable as garnishee, and was dis- 6 Alabama, 704 ; Baxter v. Vincent, 6 charged ; and afterwards, when sued by Vermont, 614 ; Barton v. Albright, 29 the defendant, undertook to set up the Indiana, 489. See Tams v. Bullitt, 35 judgment by default in bar of the ac- Penn. State, 308, where it was held, that tion ; it was held to be no bar, although a judgment against a garnishee is no bar the judgment by default was rendered to an action by the assignees in insol- before, and the discharge of the garnishee vency of a defendant, to recover from ordered after, the commencement of the him more than he was charged for as defendant's suit against him. Sargeant garnishee. v. Andrews, 3 Maine, 199. ^ Savage's Case, 1 Salkeld, 291; Mc- ^ Perkins v. Parker, 1 Mass. 117; Daniel v. Hughes, 3 East, 367; Turbill's Hull v. Blake, 13 Ibid. 153. Case, 1 Saunders, 67, Note 1. ^ Sessions v. Stevens, 1 Florida, 233. < Matthews v. Houghton, 11 Maine, ' Covert f. Nelson, 8 Blackford, 265 ; 377 ; Norris v. Hall, 18 Ibid. 332 ; Mc- King v. Vance, 46 Indiana, 246. AUister v. Brooks, 22 Ibid. 80. But it * Coburn v. Currens, 1 Bush, 242. must be a final judgment, not a judgment ^ Cheongwo v. Jones, 3 Washington by default merely. Therefore, where, C. C. 359. imder the practice in Maine, a garnishee [618] CHAP. XXXVni.] AND THE MANNER OF PLEADING IT. § 708 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 him from liability .^ And so in Texas.^ The Supreme Court of Massachusetts, however, has somewhat modified its first ruling on this subject, holding that where it does not appear that execution has been awarded against the 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.^ 1 Lowry v. Lumbermen's Bank, 2 "Watts & Sergeant, 210 ; Brown v. Somer- ville, 8 Maryland, 444. 2 Brannon v. Noble, 8 Georgia, 549. » Cook V. Field, 3 Alabama, 53. * Farmer v. Simpson, 6 Texas, 303. s Meriam v. Rundlett, 13 Pick. 511. The facts of the case were thus stated in the opinion of the court : " This is assumpsit by the indorsees against the promisors on a promissory note given at St. Louis, in tlie State of Missouri. The defendants plead in bar, that after the making of the note, which was given to one Oliver Hudson, upon a purchase at auction of the goods of Hudson, and in satisfaction of a precedent debt to Hud- son, by Rundlett (the defendant in the action) and his partner Randolph jointly, they were attached as the garnishees of said Hudson, and upon a disclosure of the circumstances under which this note was given, they were adjudged liable as such garnishees, to Hill & M'Gunnegle, the plaintiffs in that suit. It is not alleged that they have paid over any thing in pursuance of the judgment in that suit, nor is the law of Missouri set out to such an extent as to enable the court to deter- mine what is the effect of such a judg- ment in that State. On oyer the judg- ment and proceedings are set out at length in the replication. The proceed- ings are detailed so far as to show that Rundlett, for the firm of Rundlett & Randolph, garnishees in the case, having in his answer admitted that they were indebted to said Oliver Hudson in the sum of $379.74, it was considered that the plaintiffs recover against said Rund- lett & Randolph, garnishees as aforesaid, the said sum, &c." To this plea there was a demurrer, assigning the following causes : 1. That it does not appear from the plea, that Rundlett & Randolph have ever paid any thing on account of the judgment recovered against them as gar- nishees, nor that they were liable to pay the same when the plea was pleaded. 2. That the facts set forth in the plea are only a ground for a continuance, and not for a plea in bar, until Rundlett & Ran- dolph have paid the money on the judg- ment against them as garnishees. 3. That it appears from the record that Hill & M'Gunnegle recovered judgment against Hudson for $1,007.79, and against four other persons, as garnishees, divers sums, [619] § 709 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. § 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 phiintiff 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 making together $1, 724. 06; and the plea does not show wliether those other gar- nishees, or eitlier of tliem, have or have not paid any part of the judgments re- covered against them as garnishees. Shaw, C. J., delivered the opinion of the court. " It has heen very well settled in this Commonwealth, that a judgment against a garnishee in another State, where the court has jurisdiction of the person and of the subject-matter, will protect one here, who has been obliged to pay, or is compellable to pay, in pursuance of such judgment, although it be a debt due on a promissory note or other negotiable security, although no such judgment would have been rendered against a garnisliee or trustee under our laws, and although such law appears to us a little unreasonable. " He who pays under the judgment of a tribunal having legal jurisdiction to decide, and adequate power over the person or property to compel obedience to its decisions, has an indisputable claim to protection. But upon general principles, one who has not yet been compelled to pay, and who may never be obliged to pay to another, who has at- tached the debt in his hands, although he may have good right to insist that proceedings ought not to be commenced or prosecuted against him, whilst his hands are tied, and he is legally prohib- ited from paying his debt, and so may have good ground for an abatement or stay of proceedings, seems in no condi- tion to deny the plaintiff's right to recover his debt, absolutely and for ever. " In examining the record of the judg- ment, as set out in the replication, it does not appear that any execution has ever been awarded. But it does appear that the whole debt due to the plaintiffs in that suit, as settled by the judgment, was -^l.OOT.TQ with costs ; and that other [620] garnishees were charged, in precisely the same terms with the defendants, in sev- eral sums, which, together with the judg- ment against the defendants, made up- wards of §2,100, that is, more than double the amount. It is impossible, therefore, to consider, that these debts became absolutely transferred and made debts due from the garnishees to the attaching creditor ; the more rational inference, therefore, would be, that by the law of that State such judgment is deemed to operate as a sequestration, as a lien, mak- ing these sums chargeable and liable in the hands of the garnishees to the amount of the attaching creditor's debt, and no further. If this is not a just inference, if the effect of this adjudication was abso- lutely to transfer the debt, to extinguish tlie relation of debtor and creditor be- tween the garnishee and the original proprietor and present indorser of the note, the law of Missouri, giving it that extraordinary effect, should have been set out; but as it is not done, the plea in bar cannot be supported." The court then enter upon an exam- ination of the attachment law of Mis- souri, and find there a sufficient ground for affirming the position previously an- nounced, "that the judgment against the garnishees amounts to nothing more than a lim on the fund in their hands, and even that is a provisional one, to take eflfect only in case that other funds which are first chargeable shall prove insuffi- cient. The court are, therefore, of opin- ion that, notwithstanding the judgment, until an execution has been awarded, and the garnishee has been called on or compelled to pay, it is not sucli a pay- ment, merger, or discharge of the origi- nal debt as to be pleaded in bar, and therefore that the plea in this case, not stating either payment or execution awarded, is bad." CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 711 by the laches of the plaintiff, and that the judgment was no de- fence 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 pajanent 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 debt- ors 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 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 at- tachment 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 compendiouslj^ stated as follows : 1. The judgment against the garnishee, under which he al- leges he made the payment, must be proved.^ Of course, the 1 Flower v. Parker, 3 Mason, 247. ^ McAllister v. Brooks, 22 Maine, 80. '^ Ante, § 706 ; Brown v. Dudley, 33 * Cook v. Field, 3 Alabama, 68. New Hatnp. 511; Gunn i\ Howell, 35 ^ Noble v. Thompson Oil Co., 69 Alabama, 144; Dole v. Boutwell, 1 Allen, Penn. State, 409. 286 ; Ladd v. Jacobs, 64 Maine, 347 ; <> Barton v. Smith, 7 Iowa, 85. Allen V. Watt, 79 Illinois, 284. [621] § 711 WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIIT. 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 commenced, 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 payment not made under execution will be regarded as voluntary, and, therefore, no protection to the garnishee;^ unless the law au- thorized 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 contrived. Thus, where certain persons were charged as garnishees, and credited the plaintiff on their books with the amount of the judg- ment, and debited the defendant with the same amount, but did not in fact pay the money, it was held to be no payment.^ 1 Leonard v. New Bedford Savings ^ Wetter v. Rucker, 1 Broderip & Bank, 11(5 Mass. 210. Bingham, 491. The following case is ^ Loring v. Folger, 7 Gray, 505. reported in Maryland : A. executed to 3 Wetter v. Rucker, 1 Broderip & B. several notes, for different amounts, Bingham, iyi. In Missouri, where a and payable at difierent times; and was judgment debtor was garnished, who afterwards garnished, in a suit against B., jjaid the judgment under an execution and charged in respect of all of the afterwards issued, but which was irreg- notes. After being so charged, A. bought ular and might have been set aside on the judgment which had been rendered his application, the payment was held against liim as garnishee, for about one- to be no protection against the garnish- third of its amount. Alter this, A. was ment. Home Mutual Ins. Co. v. Gamble, sued by an indorsee for value of one of 14 Missouri, 407. See Burnap v. Camp- tlie notes, in respect of which tiie judg- bell, 6 Gray, 241. ment against him as garnisliee had been •* Ohio & M. R. W. Co. v. Alvey, 43 rendered ; and set up that judgment and Indiana, 180; Rochereau v. Guidry, 24 the transfer of it to him, as a defence, Louisiana Annual, 2y4. by way of a payment under garnisliment. [622] CHAP. XXXVni.] AND THE MANNER OF PLEADING IT. § 711 5. The judgment under which the payment was made must have been rendered by a court having jurisdiction of the subject- matter and the parties. If there be a defect in this respect, the payment will be regarded as voluntary, and therefore unavail- ing.^ If, 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, will not invalidate the payment.* But if the gar- nishee contest the jurisdiction of the court, and his objection is 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 tlie holder of the note was interested in the payment of the whole amount of the judgment against A. ; and A., by the purcliase of the judgment, occupied no better position than any other purchaser of it would occupy ; and that such pur- chase was no defence against the note, though as betweeeu A. and the attach- ment plaintiff tlie judgment was satisfied and closed. Brown v. Sonierville, 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. tlien 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 BO much as he owed B., wliicli note was in the following form : " Value received 1 promise to pay A., $o44,52, 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 any thing 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, that a payment by the gar- nishee under a judgment upon which no execution had been issued, was sufficient to protect the attachment plaintiff against an action by the defendant, after that judgment had been set aside, to recover back the amount paid by the garnishee. ' Harmon v. Birchard, 8 Blackford, 418 ; Ford v. Hurd, 4 Smedes & Marshall, 683 ; Robertson v. Roberts, 1 A. K. Mar- shall, 247 ; Richardson v. Hickman, 22 Indiana, 244 ; Stimpson v. Maiden, 109 Massachusetts, 313. •i Morgan v. Neville, 74 Penn. State, 52. 3 Atcheson v. Smith, 3 B. Monroe, 502 ; Lomerson v. Hoffman, 4 Zabriskie, 674 ; Pierce v. Carleton, 12 Illinois, 358 ; Houston V. Walcott, 1 Iowa, 86; Steb- bins V. Fitch, 1 Stewart, 180 ; Thompson V. Allen, 4 Stewart & Porter, 184 ; Gunn V. Howell, 35 Alabama, 144 ; Webster v. Lowell, 2 Allen, 123. * Duncan v. Ware, 5 Stewart & Porter, 119. [623] § 712 "WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. 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. Tliough 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 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 1 Wyatt's Adm'r v. Rambo, 29 Ala- (Mi.), 43; Grissom v. Reynolds, Ibid, bama, 510; Gunn v. Howell, 35 Ibid. 144. 670. 2 Myers v. Urich, 1 Binney, 25. See * McPhail v. Hyatt, 29 Iowa, 137. Moyer v. Lobengeir, 4 Watts, 390. 5 Yocum v. White, 36 Iowa, 288. ^ Oldiiam V. Ledbetter, 1 Howard [624] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 715 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 regularity, nor can he in any way be held responsible for it.^ § 714. In order to entitle one to plead an attachment as a con- clusive defence, there should be no neglect, collusion, or misrep- resentation on his part, in the progress of the attachment suit. For if his conduct be deceptive, and his statements untrue, and especially if this be so in collusion with the attachment plaintiff, the judgment will not be conclusive against his creditor.* 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 w^as 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 1 Desha v. Baker, 3 Arkansas, 509. Gray, 2G7 ; Wheeler v. Aldrich, 13 Ibid. See ante, § 451 b. 51 ; Burton v. District Township, 11 2 Ante, § 697. Iowa, 166. 3 Parmer ;;. Ballard, 3 Stewart, 326 ; * Coates v. Roberts, 4 Rawle, 100 ; Tubb V. Madding, Minor, 129 ; Gilder- Seward v. Hefiin, 20 Vermont, 144. sleeve v. Caraway, 19 Alaliama, 246 ; ^ gtille v. Layton, 2 Harrington, 149. Morrison v. New Bedford Institution, 7 40 [625] § 71G WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVIII. 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 by the creditor against him who was garnishee, the hitter shouhl 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 pro tanto ; but it was held insufficient, because in itself affording no evidence that A. was charged as garnishee on account of the note.^ § 716. Where 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.* 1 Cornwell v. Hungate, 1 Indiana, 418. See Humphrey v. Barns, Croke, 156; Sangster i;. Buit, 17 Ibid. 854 ; Eliz. 091. iJirlam v. Wenger, 14 Missouri, 548. ^ Hutchinson v. Eddy, 29 Maine, 91. 2 Harmon v. Birchard, 8 Blackford, See Dirlam i,-. Wenger, 14 Missouri, 548. [626] * Cook V. Field, 3 Alabama, 53. CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 717 § 717. Usually, as between the garnishee and the defendant in the attachment, difficulty may not arise from insufficiency in the 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 by the assignee.^ In Alabama, the statutory practice is, where a garnishee fails to answer, to render judgment nisi against him for the full amount of the plaintiff 's 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 duly 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 7iisi, and upon being afterwards sued by the indorsee of a promissory note he had given to the attachment defendant, pleaded that paj^nent 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 Avhen he would ^ Prescott V. Hull, 17 Johnson, 284; say, if a trustee make a full and fair dis- Colvin u. Rich, 3 Porter, 175; Lanikin v. closure of all tiie facts within his knowl- Phillips, y Ibid. ycS; Foster v. White, edge, and use all reasonable exertions to Ibid. 221 ; Johns v. Field, 5 Alabama, preserve the rights of an absent assignee, 484; Crayton v. Clark, 11 Ibid. 787; that a judgment against him shall not be 8moot V. Eslava, 23 Ibid. 659 ; Stockton a protection to him against such assignee. V, Hall, Hardin, IGU ; Milliken u. Loring, Bat if the trustee make but a partial disdo- 37 Maine, 408; Bunker v. Gilmore, 40 sure, so that tlie court hace not op/iortuniti/ to Ibid. 88 ; Casey v. Davis, 100 Mass. 124 ; judje of the real merits of the case, and there Greentree v. liosenstock, 34 New York be any indications of collusion bvtween him Superior Ct. 505; 01 New York, 583; and the creditor, the judi/ment should fur- Dawson v. Jones, 2 Houston, 412. In nish him no protection whatever." See Seward v. Hellin, 20 Vermont, 144, Marsh v. Davis, 24 Vermont, 303. Hall, J., said : " I am not prepared to [6271 § 718 ■WHERE ATTACHMENT IS A DEFENCE, [CHAP. XXXVHI. have been required by the scire facias — if one had been issued — to appear and answer ; but no scire facias was issued. The 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 knowledge before he could have answered under the scire facias, and before any final judg- ment could have been rendered against him, it was his duty to have answered, and made 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.2 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 Avill 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 party to pay his debt twice. ^ § 718. It is the dut}^, 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 1 Johns V. Field, 5 Alabama, 484. See ^ Oldham v. Ledbetter, 1 Howard Colvin V. Rich, 3 Porter, 175; Foster v. (Mi.), 43. White, 9 Ibid. 221 ; Kimbrough v. Davis, * Yarborough v. Thompson, 3 Smedes 34 Alabama, 583. & Marshall, 291. 2 Smith V. Blatchford, 2 Indiana, 184. [628] CHAP. XXXVIII.] AND THE MANNER OF PLEADING IT. § 719 by him of an assignment of the chose in action, in respect of which it is souglit to charge him, depends, as in Massachusetts, upon the evidence which the answer affords of the existence and les:al efficacy of such assignment, it is indispensable that the assignee should produce to the 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 in- formed him that the note was his property, and that B. acted as his agent fti 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 ac- tion ; the main ground assumed, being that C. had failed to exhibit such evidence of his title as would authorize A. to express his belief in its existence and validity.^ § 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 garnishee.^ 1 Wood V. Partridge, 11 Mass. 488; 2 Wentworth v. Weymouth, 11 Maine, McAllister v. Brooks, 22 Maine, 80. 446. 3 Warren v. Copelin, 4 Metcalf, 594. [629] § 723 WHERE ATTACHMENT IS A DEFENCE. [CHAP. XXXVIII. § 720. In pleading a recovery against the maker of a note, as garnishee of the payee, it is not necessary that the plea should aver, in totidem 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, 90. 5 McDaniel v. Hughes, 8 East, 367 ; 2 Glanton v. Griggs, 5 Georgia, 424. Morris v. Ludlam, 2 H. Black. 362. 3 Cook V. Field, 3 Alabama, 53. ^ Sergeant on Attachment, 2d Edi- * Turbill's Case, 1 Saunders, 67, tion, 166 ; Paramore v. Pain, Cro. Eliz. Note 1 ; Coates v. Roberts, 4 Rawle, 100. 598 ; McDaniel v. Hughes, 3 East, 367 ; Morris v. Ludlam, 2 H. Black. 362. [630] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 726 CHAPTER XXXIX. ACTION FOR MALICIOUS ATTACHMENT. § 724. In the chapter on Attachment Boncls,^ we 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, npon 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.^ § 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, Avith security, conditioned to pay all damages the defend- ant might sustain by reason of the attachment having been wrongfully obtained ;^ nor is he precluded from maintaining his action for damages by his having given a delivery bond for the propert}' attached ;^ nor by his having consented to the dismissal 1 Ante, Ch. VI. Smith, 9 Robinson (La.), 418 ; Preston v. 2 Rogers y. Pitman, 2 Jones, 56. Cooper, 1 Dillon, 589; Lawrence v. 3 Sanders v. Huglies, 2 Brevard, 495 ; Hagerman, 56 Illinois, 68 ; Spaids v. Bar- Donnell v. Jones, 13 Alabama, 490 ; rett, 57 Ibid. 289. Smith V. Story, 4 Humphreys, 169 ; Pettit * Alexander v. Jacoby, 23 Ohio State, V. Mercer, 8 B. Monroe, 51 ; Senecal v. 358. [631] § 728 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. of the attachment suit.^ On the 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.2 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 State, the forms of the proceeding must be tested by the laws of that State ; but if valid 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.^ 1 Spaulding v. Wallett, 10 Louisiana ^ Kirksey v. Jones, 7 Alabama, 622. Annual, 105. ® Wood v. Weir, 5 B. Monroe, 544. 2 Kinsey v. Wallace, 36 California, '' Kinsey v. Wallace, 36 California, 462. 462. 3 Ante, Ch. VI. 8 Wiley v. Traiwick, 14 Texas, 662. * McKellar v. Couch, 34 Alabama, 336; Benson v. McCoy, 36 Ibid. 710. [632] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 730 § 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 armis, 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 sufficient 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 that 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 him what to do. It is the duty of the court to deliver the pro- cess to its executive officer, 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.^ 1 Post, § 732. Tliompson, 3 Metcalfe (Ky.), 121 ; Feazle 2 Shaver v. White, 6 Munford, 110; i'. Simpson, 2 Illinois (1 Scammon), 30 ; Ivy V. Barnhartt, 10 Missouri, 151 ; Spaids v. Barrett, 57 Ibid. 289. Lovier v. Gilpin, 6 Dana, 321. ^ Bump v. Betts, 19 Wendell, 421. 8 Bump V. Betts, 19 Wendell, 421 ; ^ Fortman v. Rottier, 8 Ohio State, Rea V. Lewis, Minor, 882; Nolle v. 548. Thompson, 3 Metcalfe (Ky.), 121; Feazle ^ Marshall v. Betner, 17 Alabama, V. Simpson, 2 Illinois (1 Scammon), 30. 832. * Rea I'. Lewis, Minor, 382 ; Nolle v. ^ Walser v. Thies, 56 Missouri, 89. [633] § 782 ACTION FOR ISrALIClOUS ATTACHMENT. [CHAP. XXXIX. § 730 a. In such an action, before the defendant can be called upon to sustain the trutli of the affidavit upon Avhich the attach- ment was issued, the plaintiff must give some evidence of its falsity, or of circumstances from 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 onus is, in the first instance, on him.^ § 731. In such an action a return of the sheriff on the attach- ment, " 7iot executed by order of the plaintiff,''' does not disprove the fact that an attachment was made. Though given in evidence 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 was decided that no action could be sustained, unless it ap- peared that the plaintiff, in attaching the defendant's property, 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 recognized and affirmed in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Ohio, Illinois, Tennessee, Kentucky, North Carolina, Georgia, Louisiana, and Texas.^ In Virginia, however, 1 O'Grady v. Julian, 34 Alabama, 88. Mitchell v. Mattingly, 1 Metcalfe (Ky.), See Burrows v. Lehndorff, 8 Iowa, 96. 237. In Wood v. Weir, 5 B. Monroe, 2 Mott V. Smith, 2 Cranch C. C. 33. 544, the Court of Appeals of Kentucky 3 Young V. Gregorie, 8 Call, 446; thus state the doctrine applicable to ac- King f. Montgomery, 50 California, 115. tions for malicious suit: "To maintain 4 Lindsay v. Larned, 17 Mass. 190 ; an action for a malicious suit, as well as Wills V. Noyes, 12 Pick. 324 ; Ives i'. for a malicious prosecution, three things Bartholomew, 9 Conn. 309 ; Bump v. are necessary to be made out by the Betts, 19 Wendell, 421 ; Boon v. Maul, plaintiff: 1. A want of probable cause ; Pennington, 2d Ed. 631 ; McCullough v. 2. Malice in the defendant ; and 3. Dam- Grishobber, 4 Watts & Sergeant, 201 ; age to the plaintiff. Malice may be im- Tomlinson v. Warner, 9 Ohio, 103 ; Fort- plied from the want of probable cause, man r. Rottier, 8 Ohio State, 548; Law- but this implication may be explained rence v. Hagerman, 56 Illinois, 68 ; Spaids and repelled by facts and circumstances V. Barrett, 57 Ibid. 289 ; Smith v. Story, indicating a fair and legitimate purpose 4 Humphreys, 169 ; Williams v. Hunter, and honest pursuit of a claim believed 3 Hawks, 545; Senecal y. Smith, 9 Rob- to be just. So, though there be probable inson (La.), 418; Wiley y. Traiwick, 14 cause, and even just grounds for the suit, Texas, 662; Sledge v. McLaren, 29 if, from bad intentions or malicious mo- Georgia, 64; Accessory Transit Co. v. tives, an illegal, oppressive, and vexa- McCerren, 13 Louisiana Annual, 214 ; tious order is procured, by the attorney [634] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 732 a in 1859, it was held, that under the broad and comprehensive 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 suflEicient proof of the former.^ And in Illinois, while it was recognized that the averment of the want of probable cause is of the gist of the action, it was considered that the Avords " without any reasonable or probable cause " are not indispensable 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. 2 § 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 ex- isted at the time certain facts and circumstances, which, had they been then known to me, would have warranted me in be- lieving you guilty.' " Probable cause is, therefore, to be referred or client, or botli, without probable cause plained away or repelled by counteract- or excuse, by which damage is done to ing circumstances." the defendant, an action will lie against * Spengler v. Davy, 15 Grattan, 381. them both. And malice may be implied ^ Spaids v. Barrett, 57 Illinois, 289. from the want of probable excuse, or ^ Walser v. Tliics, 50 Mi-ssouri, 89; grounds for the order, which may be ex- Holliday v. Sterling, 62 Ibid. 321. [685] I § 734 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. 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 im- proper motive. It need not imply malignity, nor even corruption, in the appropriate sense of those terms. That which is done contrary to one's own conviction of duty, or with a wilful disre- gard of the rights of others, whether it be to compass some un- lawful end, or some lawful end by unlawful means, or to do a wrong and unlawful act, knowing it to be such, constitutes legal malice.^ 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.^ § 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 by 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 1 Spengler v. Davy, 15 Grattan, 381. Alexander v. Harrison, 38 Missouri, 258. In Illinois probable cause was defined to In Alabama it was held, that the obtain- be " a reasonable ground of suspicion, ing by the attachment plaintiff of a sec- supported by circumstances sufficiently ond attachment, a week after that on ac- strong in themselves to warrant a can- count of which the action for malicious tious man in the belief that the per- attachment is brought, might be given in son accused is guilty of the oflTence evidence on the question of malice. Kyall charged." Barrett v. Spaids, 70 Illinois, v. Marx, 50 Alabama, 31. 408. •* Tomlinson v. Warner, 9 Ohio, 103. 2 Wills V. Noyes, 12 Pick. 324 ; Cul- » Wood v. Barker, 37 Alabama, 60 ; 1 bertson v. Cabeen, 29 Texas, 247. Shepherd's Select Cases, 311. 5" Ives V. Bartholomew, 9 Conn. 309 ; [636] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 736 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 kneiv 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 Massa- chusetts, that the plaintiff's belief oi 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 re- lation 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 by the defendant's conduct, that the defendant, as alleged in the affidavit, had absconded, was sufficient to protect the plain- tiff from this action, although in fact the defendant had not ab- sconded.^ 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 appre- hensions, 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 inten- tion 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 ; it was held, that a recovery could not be had merely on the ground that the attach- ment had been obtained when it ought not to have been, but that 1 Stone V. Swift, 4 Pick. 389 ; Alex- ' Williams v. Hunter, 3 Hawks, 545. ander i'. Harrison, 38 Missouri, 258. * McCullough v. Grishobber, 4 Watts 2 Boon V. Maul, Pennington, 2d Ed. & Sergeant, 201. 631. [637] § 738 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. 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 rep- resentations made to the plaintiff by third parties, that the defend- ant 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 at- tachment, 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 jjlaintiff 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 gestceJ' 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 probability 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 sufficient to pro- tect him from a recovery of those damages which, but for pecul- iar statutes, would be authorized by the common law, and could be recovered only on common-law grounds. 1 Smith V. Story, 4 Humphreys, 169. 5 -Wood v. Barker, 37 Alabama, 60; 2 Schrimpf v. McArdle, li^ Texas, 368. 1 Sheplierd's Sel. Cases, 311. 3 Ante, § 157. •> Cox v. Kobmson, 2 llobinson (La.), •» Donnell y. Jones, 13 Alabama, 490 ; 313. White V. Wyley, 17 Ibid. 167. [638] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 741 § 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 adjudicata, 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 at- tachment 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 wliere this course may be pursued, it has been held, that an appearance to the attachment, entering special bail, and confessing judgment for only a part 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 ex- torted, 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, dechirations of the debtor made a few days before the issue of the attachment, which, when 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 ex- 1 Hayden v. Sample, 10 Missouri, 215. 2 Foster v. Sweeny, 14 Sergeant & Rawle, 386. [639] \ § 743 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. plaiKitoiy 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 qual- ity of the facts they were intended to explain, and so to harmo- nize with those facts as obviously to constitute one transaction. 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 gesta.', 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 it. 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 which 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 ascertaining the damage he 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 1 Havis V. Taylor, 13 Alabama, 324. 3 Lockhart v. Woods, 38 Alabama, 631. 2 Havis V. Taylor, 13 Alabama, 324 ; ■* Donnell v. Jones, 13 Alabama, 490. Pitts V. Burroughs, 6 Ibid. 733. See Mayfield v. Cotton, 21 Texas, 1. [640] CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHMENT. § 744 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 any 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 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.^ § 744. When, in the attachment suit, the plaintiff shall have recovered judgment, it is, until reversed, 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." Not so, however, when the judgment in the at- » Kirksey v. Jones, 7 Alabama, 622; 653; Goldsmith v. Picard, 27 Ibid. 142; Lockhart v. Woods, .38 Ibid. 631. Lockhart v. Woods, 38 Ibid. 631. -Melton I'. Troutman, 15 Alabama, ^ ]{aver y. Webster, 3 Iowa, 502 ; Stone 535. V. Swift, 4 Pick. 389; Alexander v. Har- 3 Yarbrough v. Hudson, 19 Alabama, rison, 38 Missouri, 258. 5 Jones V. Kirksey, 10 Alabama, 839. 41 [041] § 745 ACTION FOR MALICIOUS ATTACHMENT. [CHAP. XXXIX. tacliment suit shall have been 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 jur}^ 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 jur}^ 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." ^ In Alal)ama 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 ;^ 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 1 Marsliall v. Betner, 17 Alabama, 832. 2 2 Greenleaf on Evidence, § 456 ; See Gaddis v. Lord, 10 Iowa, 141. Walser v. Thies, 56 Missouri, 89. 8 Marshall v. Betner, 17 Alabama, 832. [6421 CHAP. XXXIX.] ACTION FOR MALICIOUS ATTACHIVIENT. § 745 proved.^ 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 jjlaintiff; while its tendency was to multiply the issues before the jury almost indefinitely .^ 1 Goldsmith v. Picard, 27 Alabama, ^ Lawrence y.Hagerman, 56 Illinois, 68. 142 ; O'Grady v. Julian, 34 Ibid. 88. 3 O'Grady v. Julian, 34 Alabama, 88. [643] APPENDIX. THE LEADIXG 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 clue 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 Uquidated : IV. When the action sounds in damages merely. The following are the grounds upon which an attachment may be obtained : — 1. AVhen the defendant resides out of the State ; or, 2. Absconds ; or, 3. Secretes himself so that the ordinary 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. G46 APPENDIX. In cases where the cause of action comes under either of the last two chisses above named, the phuntiff, his agent or attorney, in addition to the affidavit required in otlier 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 to the defendant, with condition that the plaintiff will prose- cute the attachment to effect, and pay the defendant all such damages as he may sustain from the wrongful or vexatious suing out the attach- ment. A non-resident of this State may sue out an attachment against a non-i'esident for an existing debt, or ascertained liability ; but the plain- tiff, his agent 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 ot his residence, wherefrom to satisfy the debt; and must also give bond as in other cases, with surety resident in 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 certain 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 cred- itors; 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 1 Code of Alabama, 1876. APPENDIX. 6'47 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 pennitted 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 gi-anted on the ground that the defend- ant 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 defend- ant in an action to recover possession of personal property, where it has been ordered to be delivered to the plaintifl", and where the prop- erty, 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 is brought for the recovery of money, where there is filed in his office an affidavit of the plaintiff, or some one in his behalf, showing — 1. The nature of the plain tiflfs 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. When 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 statement of fact in the affidavit. An order of attachment cannot be issued until there has been exe- cuted 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, before 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, G-iS APPENDIX. 2. Is abo\it to make such fraudulent sale, conveyance, or disposition of his jiroperty, with such intent ; or, 3. Is about to remove his ])ro]K'rty, or a material part thereof, out of tliis State, with the intent or to tlie effect of cheating or defraud- ing his creditors, or of liindering 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 circuit judge, in vacation, where the complaint, verified by the oath of the plaintiff, 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, includ- ing stock in corporations, 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 his hands or possession goods and chattels, moneys, credits, and eff'ects, belong- ing to such defendant, the plaintiiFmay sue out a writ of garnishment, setting forth his cause of action against the defendant, and command- ing the officer to summon the person therein named as garnishee, to appear at the return day of the summons in the action, if the writ shall have been issued at the commencement thereof; and if not so issued on such day as the court shall designate, to answer what goods, chattels, moneys, credits, and eff^ects he may have in his hands, be- longing to such defendant ; and in all such actions, where the plaintiff" shall have obtained judgment, he may sue out a writ of garnishment, setting forth such judgment, and shall proceed in the manner herein directed for the enforcement and collection thereof. The plaintiff's in all cases of garnishment 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.-^ 1 Gantt's Arkansas Digest, 1874. APPENDIX. 649 CALIFORNIA. The plaintiff, at the time of issuing the summons, or at any time afterward, may have the property of the defendant attached as secu- rity for the satisfaction 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, 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 per- sonal 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 security was given, become valueless. II. In an action upon a contract, exjjress or implied, against a de- fendant not residing in this State. The clerk of the court issues 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 and counter-claims), upon a contract, express or implied, for the direct pay- ment 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 personal property ; or, if origi- nally so secured, that such security has, without any act of the 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 prose- cuted, to hinder, delay, or defraud any creditor of the defendant. Before issuing the writ, the clerk shall require a written undertak- ing on the part of the plaintiff, in a sura not less than two hundred dollars, and not exceeding the amount claimed by the plaintiff, with sufficient sureties, to the effect that, if the defendant recover judgment, 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. Under the writ, all descriptions of property may be attached, includ- ing rights or shares which the defendant may have in the stock of any corporation or company, and all debts due the defendant ; and gar- nishees may be 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.^ 1 2 Hittell's Codes and Statutes of California, 1876. 650 APPENDIX. COLORADO. The plaintitf, nt the time of issuing the summons in an action on contract, express or implied, or at any time afterwards before judg- ment, may obtain an attachment against the property of tlie defendant, unless the defendant give good and sufficient security 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 alleg- ing 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 is 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 men- tioned in the affidavit has been due during 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, 11. 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 instance of the defendant, and which should have been paid at the completion of such work, or when such services were fully ren- dered ; or, 12, Fraudulently contracted the debt, or fraudulently incurred the liability, respecting. which the suit is brought, or by false representa- tions or false pretences, or by any fraudulent conduct, procured money or i^roperty of the plaintiff. APPENDIX. 651 Before issuing the writ 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 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 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. Rights or shares of the defendant in the stock of any corporation or company, 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 on oath.i CONNECTICUT. The process in civil actions in this State is by summons or attach- ment. 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 bond must be given before such process is issued, conditioned to pros- ecute 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 liis or their usual abode, and it 1 Colorado Code of Civil Procedure, 1877. 652 APPENDIX. shall be the duty of the officer serving such writ to leave a copy there- of according to such direction ; and, from the time of leaving such copy, all the goods and effects in the hands of such attorney, agent, ftctor, 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 reqxiired to appear in court, and answer on oath whether he has any goods or effects of the defendant, or is 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 trustee.^ DELAWARE. In this State there are domestic attachments and foreign attach- ments. Domestic Attachment. A writ of domestic attachment issues against an inhabitant of this State after a return to a summons or capias sued and delivered to the sheriff, ten days before the return thereof, showing that the defendant cannot be found, and proof, satisflictory to the coiu-t, of the cause of action ; or upon affidavit made by the j^laintiff, or some other credible person, 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 de- fraud his creditors or to elude process, as is believed. The writ of attachment commands the officer to attach the defend- ant by all his goods and chattels, rights and credits, lands and tene- ments, 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 i^ersons to audit the claims of the defendant's creditors, and to adjust and ascertain all their demands, 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 1 Revised Statutes of Connecticut, 1875. APPENDIX. 653 several creditors, allowing to the creditor attaching and prosecutino- 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 I^roof 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 dividend, he must enter into recognizance, with surety, to secure the repayment of 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. Foreifjn Attachment. A writ of foreign attachment issues against any corporation, 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 thei-eof, 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 exceed- ing fifty dollars. The writ of foreign attachment is framed, directed, executed, and returned, 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 e,2i\e^ fieri facias^ ccqnas ad satisfaciendum, 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, in 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 affi- davit and giving an undertaking. The warrant of attachment is issued by the clerk of the court, when- ever it shall appear by affidavit that a cause of action exists against the 1 Revised Statutes of Delaware of 1852, as anieiuled up to 187-1. 654 APPENDIX. (lefendMiit, sjiocifying the nniouiit of the daim aud the grounds thereof, and that the defendant — 1. Is a foreign corporation; or, 2. Is not a resident of this State ; or, 3. lias departed therefrom with intent to defraud his creditors, or to avoid the service of a summons ; or, 4. Keeps liimself concealed tlierein, 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 olj or secreted, or is about to assign, dis- pose of, or secrete, any of his property, with like intent. Before issuing the warrant, a Avritten undertaking must be given on the part of the plaintiff, with sufficient sureties, 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 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 rights 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 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 managing agent thereof, or with the debtor or individual 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 pro- ceeds 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 oath 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, 1 Bush's Digest of Florida Statutes, 1872. APPENDIX. 655 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 enu- merated, 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 dam- ages that he may sustain, and also all costs that may be incurred by him in consequence of suing out the attachment, in the event the plain- tiff shall fail to recover in the case. Affidavit having been made and bond given in any case specified above, the officer micst issue the writ ; but in cases next to be men- tioned 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, 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, 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 pre- sented to him, before granting the attachment, appoint a day on which he shall hear the petitioner, and the party against whom the attach- ment is prayed (providing in his 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. Attachments may be levied on the defendant's property, real and personal ; and garnishees may be summoned and charged, and shares of stock in corporations 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. 6oQ APPENDIX. A surety or iiidorscr upon an instrument of writing may take out an attachment against his princii)al, if the principal sliall become subject to attachment by jthicing himself in some one 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 attachments, 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 property 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 prop- erty described in the affidavit} ILLINOIS. In any court of record having competent jurisdiction, a creditor may haA'e an attachment against the property of his debtor, when the in- debtedness exceeds 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 cannot be sei'ved 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 affidavit 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, fraud- ulently concealed or disposed of his property, so as to hinder or delay his creditors ; or, 8. Is about fraudulently to conceal, assign, or otherwise dispose of his pi'operty 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 : Provided, the statements of the debtor, his agent or 1 Irwin, Lester, & Hill's Code of Georgia, 1873. APPENDIX. 657 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 foi'th 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 residence 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 security, j^ayable to the defendant, in double the sum sworn to be due, conditioned for satisfying all costs which may be awarded to the de- fendant, or to any others interested in the proceedings, and all damages and costs which shall be recovered against the j^laintiff 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 suffi- cient 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 having any property, effects, choses in actio?i, or credits in their possession or power, belonging to the defendant, or who are in any wise indebted to the defendant.^ INDIANA. The plaintiff, at the commencement of an action, or at any time afterwards, may have an attachment against the property of the defend- ant, 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 ujion 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 execution, 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 sub- j ect to execution, with such intent. 1 Revised Statutes of Illinois, 1874. 42 658 APPENDIX. No attachment, except for the causes mentionefl in the fourth, fifth, and sixth clauses, shall issue against any debtor while his wife and fam- ily 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 wliere 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 plaintiif, 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 attachment above enumerated. The plaintiff, or some one in his behalf, must execute a written un- dertaking, with sufficient surety, to be approved by the clerk, payable to the defendant, to the effect that the plaintiff will duly prosecute his proceeding in attachment, and will pay all damages which may be sus- tained by the defendant, if the proceedings of the plaintiff shall be wrongful and oppressive. Upon the filing of such affidavit and written undertaking, in the 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, iu the same manner as an execution. Under this order, property, real and personal, is attached, and gar- nishees are summoned. If, after an order of attachment is placed in the hands of a 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 administrators, shall be liable to an attachment fur debt or other demands against the decedent's estate. If when an order of attachment issues, or at any time before or after- wards, 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 posses- sion, or under his control, which the sheriff cannot attach by virtue of such order ; or that such person is indebted 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 asso- ciation or corporation ; the clerk shall issue a summons notifying such APPENDIX. 659 person, corporation, or association to appear and answer as garuisliee in the action. Any creditor of the defendant, upon filing his affidavit and written undertaking, 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 summoned 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 defend- ant which is not exempt from execution to be attached at the com- mencement, or during the progress, of the proceedings. The grounds for obtaining ttie attachment are embodied in the peti- tion, 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 sufficient remaining for the payment of his debts ; or, 4. Has disposed of his property, in whole or in part, with intent to defraud his creditors ; or, 6. Is about to dispose of his property with intent to defraud his creditors ; 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 prop- erty therein, not exempt from execution, with which he refuses to pay or to secure the debt due the plaintiff; or, 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 pur()Ose of placing it beyond the reach of his creditors ; or, 11. His property or riglits in action which he conceals; or, 12. That the debt is due for property obtained under false j^re- tences. If the plaintiff's demand is founded on contract, the petition must state that something is due, and as nearly as practicable the amount. 1 Davis's Statutes of Indiana, 1876. OGO APPENDIX. If the demand is not founded on contract, the petition must be pre- sented to some Judge of tlie supreme, district, or circuit court, wlio shall make an allowance 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 indebtedness, and when the ])etition, 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 arrangement for securing the payment of the debt when it falls due, and which contemplated removal was not known to the plaintiff at the time the debt was contracted; or that the defend- ant has disposed of his property, in whole or in j^art, with intent to defraud his creditors ; or that the debt was incurred for property ob- tained under false pretences. Before a writ can be issued, the plaintiffraust file with the clerk a bond, for the use of the defendant, with sureties to be ajiproved 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 if in the district court, nor less than fifty dollars if in a justice's court, con- ditioned 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 plaintiflT 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 attorney's fees to be allowed by the court ; and, if it be shown that the attach- ment 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. The plaintiff may, in writing, direct the sheriff to take the answer of the garnishee, and append the same to his return. In such case, the sheriflT has power to administer an oath to garnishees, requiring them to make true answers to the questions to be propounded, the form of which is prescribed, and which requires the garnishee to state whether he is indebted to the defendant, or has in his i^ossession or under his control any property, rights, or credits of the defendant, or knows of any debts owing to the defendant, whether due or not, or any property, APPENDIX. 661 rif?hts, or credits belonging to him, and in the possession or under the control of others. If the garnishee refuse to answer fully and unequivocally the inter- rogatories, he shall be required to appear and answer on the first day of the next term of the court,^ KANSAS. The plaintifi" in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against tlie prop- erty of the defendant, upon the following grounds : — 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. When the defendant 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 defi-aud 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 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 jmce 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, Avhen 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 Iowa Code, 1873. 01)2 APPENDIX. 1. Tlio nntuve of the plaintiff's claim; 'J. 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 undeitaking 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 plaintift^'s claim, to the effect that the plain- tiff 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, tene- ments, goods, chattels, stocks, rights, credits, moneys, and effects. Garnishees may be summoned, upon the plaintiff", his agent or attor- ney, 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 garnishee stands liable, from the time of service of notice u])on him, to the plaintiff, 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 possession of all notes, due-bills, books of account, accounts, and all other evidences of debt that have been taken by the officer, and proceed to settle and collect the same. Where a debtor has sold, conveyed, or otherwise disposed of his projierty, Avith 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 collec- tion 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 Avriting, 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 attachment against the property of the defendant, in the cases and 1 Dassler's General Statutes of Kansas, 1876. APPENDIX. 663 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 credit- ors ; 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 plaintiti^'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 de- fendant is a foreign corporation, or a non-resident of this State, for any claim other than a debt or demand arising upon contract, exj^ress or implied, or a judgment or award. IT. 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 demand will be endangered by delay in 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 affiant believes the plaintiff oiight to re- cover; 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 664 APPENDIX. of the property claimed, and the facts mentioned under that head exist. Where the return by tlie proper officer upon a summons against a defendant states that he has left tlie county to avoid the service of the summons, or has concealed himself therein for that purpose, it is equivalent to the statement of the fict 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 pay to the defendant all damages which he may sustain by reason of the attach- ment, 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 delivery of the order to the sheriff, in the game manner as an execution would bind it ; and the 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 pro- ceedings 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, com- manding 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. When the debtor is about leaving permanently the State, with- out there being a possibility, in the ordinary course of judicial proceed- ings, 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 sj^ecies of property belonging to his debtor, real or personal, 1 Bullitt's Kentucky Code of Practice, 1876. APPENDIX. 665 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 per- sons by his creditor, in order to secure the payment of a debt, what- ever may be its nature, whether the amount be liquidated or not, provided the term of payment 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 jurisdiction 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 property out of the State before the debt be- comes 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 perma- nently, or that he resides out of the State, or conceals himself, so that citation cannot be served on him. In the absence of the 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 de- fendant, for a sum exceeding by one-half that which he claims, with the surety of one good and solvent person, residing within the jurisdic- tion 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 attachment was wrongfully obtained. If a creditor know or suspect that a third person has in his posses- sion property 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 garnishee ; and he is required to answer categorically under oath interrogatories propounded to hiui by the plaintiflf.^ MAINE. All civil actions, except scire facias and other special writs, shall be commenced by original writs; which may be framed to attach the 1 Euqua's Louisiana Code of Practice, 1867. G66 APPENDIX. goods ami estate of the defendant, and for want thereof to take tlie body, or as an original summons witli or without an order to attach goods and estate ; and in actions against cor)>orations, and in other cases where goods and estate are attaclied, and the defendant is not liable to arrest, the writ and summons may be combined in one. All goods and chattels may be attached and held as security to sat- isfy the ju introducing new defendants, dissolves the attachment as against other attachers 287 in the given name of defendant, does not dissolve attachment 287 of answer of garnishee 650 AMICUS CURIAE, may move to quash attachment for irrcgulai'ilies, sentble 418 a ANSWER, of corporation, as garnishee, how made 472 what garnishee should state in 029-632 evasion or equivocation in, eifect of 033 importance of fulness and explicitness in 634 INDEX. '13 ANSWER — continued. Section when full and intelligible, the court will protect garnishee from fur- ther interrogatories 'j'^'^ need not conform to technical rules of pleading 037 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 639 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 any thing 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 mav be amended, when 6o0 effect to be given to 651-655 construction to be given to 65G-G58 judgment on 6oJ APPEAL, by plaintiff, suspends right of defendant to return of attached prop- erty after dissolution of attachment 428 APPEARANCE, by defendant, and plea to the merits, bar objection, after verdict, to the cause of action as not authorizing attachment, 3G sued as an absconding d-btor, 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, 144 and plea to the merits, waives defects in the preliminary proceedings 112 to an action wrongly brought, is not an appearance to it after the declaration has been amended . . . .112 a is it made bj' 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 414 ARBITRATION, reference to, by plaintiff and defendant, of all demands between tliem, 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 lespcct 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 irom the attaching plaintiff 529 714 INDEX. ASSIGNEE — continued. Section who claimed in the attaclnnent suit the debt in respect of wliieh the garnisliee was charged, and judgment was rendered declaring his assignnuMit invalid, cannot afterwards sue the garnishee for that debt 530 of debt, suing his delitor, who has been garnished in respect thereof, is not barred of recovery by the fact of the garnishment . . . 703 a ASSIGNiMENT, of attached property, may be made by defendant, subject to the attachment 222 by defendant, made after the attachment, can- not 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 accepted by the assignee 526 particular form of, not material 526 equitable, will hold the property, 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 conliicting, 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 Equitable 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 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 unli(iuidated damages arising ex contractu 13-22 INDEX. 715 A TTACHMENT — continued. Section 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 recovery 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 28-30 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 afSdavit of a debt due, when it was not due, will 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 « 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 absent debtors 39-47 against absconding debtors 48-53 a against debtors concealing themselves 54-56 against non-resident debtors 57-67 againi^t debtors removing their property 68-71 against debtors fraudulently disposing of their property . . . . 71a-77a will lie against corporations 78-80 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 112 may be avoided, when issued without bond, wiiere bond is required, 115, 116 issued without bond, will justify oifieer, unless the defect appear on the face of the writ 117 party causing to issue, and officer issuing, without bond, liable as trespassers 118 71 G INDEX. ATTACHMENT — continued. Section cannot be executed by an officer until the process has come into his hands, though he has information of its liaving been issued . . 183 a issued by an oHicer 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, accjuired after , the levy 184 J if legal in form, and issued by a court having jurisdiction, will justify oflicer 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 tiie 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, unless the latter accepted it, nor that it was sold under an execution in Jiis favor 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 .... 187 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 officer may demand indemnity before proceeding to levy .... 189 officer taking a writ, with directions to serve in a particular manner, without demanding indemnity, is bound 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 b 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 V levied on property not the defendant's, officer is a trespasser . . 196, 197 what will amount to a levy of, for which tres[)ass 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 INDEX. 717 ATTACHMENT — continued. Section officer, in executing, may not eject defendant 200 \jiust demand admittance before using 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, conHicting, 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 bona fide 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 jurisdiction, 292 d 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 may be 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 maUcious, action for 724-745 ATTACHMENT BOND, nature of 114 when required to be given before the attachment issues, a failure so to give it is fatal 115, 116 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 in the record 119 omission to recite in the writ that a bond was given, will not vitiate the attachment 119 718 INDEX. ATTACIBFENT BO'SD — continued. Section approval of oilioer need not be indorsed on 120 his receiving and filing it, estops liiin Irom denying tbat 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 hut prima facie evidence of the sufficiency of the sureties 120 given by a clerk of court suing by attachment in his own court, cannot 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 offieer, 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 authoi-- ize the quashing of the writ 122 failure of officer to return it into court, will not discharge the attach- ment, 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 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 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 terms of the condition, and in another part sets forth the fo)'m 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 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 INDEX. 719 ATTACHMENT BO^D —continued. Section purporting to be the act of the plaintiff, bj' 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 h 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 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 attach- ment 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 14-2 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 1-14 cannot be taken advantage of in appellate court 144 insolvency of sureties in, cannot authorize a requirement of addi- tional security, uidess 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 147 720 INDEX. ATTACIIMKNT JiO^Tf — coiifimml. Section where the hiw authorizes aineiuiment, 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 inilio 148 a new surety in, may be substituted, where the plaintiff needs the testi- mony of a surety 149 liability of obligors in, to defendant. Is not impaired by errors and delects in the bond 150 though taken after the issue of the writ, that 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 tiie 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 recovery on, is not restricted to such damages as may be recovered in an action for malicious prosecution, but will embrace actual damage sustained 155-161 action on, can be maintained only by the defendant 162 where defendant was served, cannot be sustained until the attachment shall have been discharged, but may be, where the proceedings are ex parte, after the ])laintiff has obtained judgment . . . 162 a in favor of several defendants, who may sue on 163 to maintain suit on, not necessary to get order of court to deliver bond to defendant 164 sureties in, liable only in reference to the particular writ for obtain- ing which it was given 165 to maintain action on, it is not necessary to recover damages first in a distinct action 166 where suit may be maintained on, without previous recovery of dam- ages in a distinct action, the sureties may be sued jointly with the principal 166 a debt is proper form of action on 167 in action on, the declaration must show that the attachment was wrongfully sued out, and what damages plaintiff has sustained . 167 how breaches of should be assigned ■ 168 recital in condition of, that {)laintiff had issued a writ of attachment against defendant, estops the obligors from denying that the attachment was sued out 169 action on, does not lie for mere failure to jirosecute the attach- ment 170 INDEX. 721 ATTACHMENT BO^DS — continued. Section may be sued on by defendant, where judgment was rendered in his favor on the merits, though he did not put in issue the truth of the affidavit 170 inaction on, where there has been no trial of the rightfuhiess 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 .... 170 a where the attachment suit was ex jxirte, what the declara- tion must allege 171 where given to obtain an original attachment, the obligor cannot defend by showing that, when he obtained the attachment, facts existed which would have justified an ancillarij attachment 172 where the attaching plaintiff, in obtaining the attach- ment, complied with all the requirements of the law, the defendant must show that it was wrongfully 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 attachment 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 attachment, the judgment will conclusively establish that the attach- ment was wrongfully obtained 173 if the attachment plaintiff recovered a less sum than the law authorized an attachment to issue for, it is com- plete evidence that the attachment was wrongfully 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 a 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 recover ble under general aver- ment of damages ; but they must be specially averred 174 what are actual damages that may be recovered . . 175-181 liability of attachment plaintiff on, exists, as well where the attach- ment 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 4G 722 INDEX. ATTORNEY AT I.A^V — continued. Section authority of, to give attaclnneut bond, will l)f presuim'd, on a motion to (jiiash or dissolve attachment i'or insufficiency of bond, but may be (jnestioned by pica 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 plain- tiff • 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 may be garnished 464, 615 cannot be charged as garnishee, in respect of a claim in his hands for collection "l^l to what extent he may, as garnishee, be required to disclose matters 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-BOND, may be given at any time before judgment 312, 313 no consideration need be inserted therein 313 a given to officer or his successor, may be sued on by the officer after he ceases to be such, or by his successor 313 6 in taking, officer is not the agent of the plaintiff 314 if terms of, are in substantial compliance with the statute, it is suffi- cient 314 a cannot be given by one of two defendants to discharge his separate effects, unless bail and appearance be entered for both, semhle . 315 obligors in, cannot object to its validity because only one surety signed it, when the statute required more than one .... 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 property attached 322 a with cond.tion 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 INDEX. 723 BAIL-BOND — continued. Section 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, released by the discharge of defendant in bankruptcy . 323 h may be sued on the bond, without issuing execution against the principal, semhle 324 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, semhle 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 sure- ties in 325 sureties in, are discharged by change of plaintiffs in the action without sureties' consent 325 a BAILMENT OF ATTACHED PROPERTY, nature and terms of 344-348 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 abandon it, the attachment is dissolved 359, 360 liability of officer for fidelity and pecuniary ability of bailee . . 361-364 officer's liability to defendant for bailed property 365 rights of bailee in the property 366-369 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 ^^73 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 380 defences by bailee 381-392 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 dur- ing the term of the bailment 245 BANK, cannot be charged as garnishee of a depositor who deposits money as agent with it 491 a 724 INDEX. BANK-KOTES, Section may be attached 244 current as money, garnishee may be charged in respect of, but not ■where they have been presented lor payment and refused . . 481 BANKRUPTCY, defendant's discharge in, releases sureties in bail-bond 323 h releases sureties in deliver}- bond .... 341 h of defendant, does not dissolve attachment lien 425 assignee in. cannot be charged as garnishee of bankrupt .... 511 BILL OF LADING, 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 BOND, {See Attachment Bond.) c. CAPTURE, 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 abatement, and no advantage can be taken of the defect, after verdict, where the defendant appears and pleads to the merits 36 not authorizing an attachment, if attachment be obtained on, and the deiendant is not served with process, the attachment is a nul- lity 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 7ion Juridlcus 187 CLAIMANT, of debt, in respect of which it is sought to charge a garnishee, cannot intervene alter the plaintiff has abandoned all right to chai'ge the garnishee 460 a INDEX. 725 CLAIMANT — continued. Section 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 receiving and filing attachment bond, estops him from denying that he approved it l^*-* suinn- bv attachment in his own court, cannot have the attachment bond approved by his own deputy l-'J money in hands of, virtute officii, not attachable 251 not subject to garnishment in respect thereof 509 CO-DEBTORS, jointly and severally liable, any one may be garnished and subjected to judgment for the whole debt 560 payment by one of, after garnishment of the other, will discharge the garnishee ^"*^ jointly liable for a debt, one cannot be charged as garnishee without joining the others ^"1 but "if part are out of the jurisdiction, those garnished may be charged ^^-' if part are in a foreign country, those residing in this country cannot be charged as garnishees ^"* COLLATERAL SECURITY, the holding of, does not prevent creditor suing by attachment ... 35 COMMON CARRIER, may be charged as garnishee '162 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 CONFt:SSION OF JUDGMENT, by defendant, before the time when the action would be regularly triable, dissolves lien of plaintiff's attachment, as against subse- quent 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 CONSIDERATIO.'^, 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 245 726 INDEX. CONSIGNEE — continued. Section may maintain replevin in sucli case, against olHcer, ibr 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 CONSPIRACY, action for, may be maintained by a creditor against his debtor and a third person, for frau(hdent attacliment 277 CONSTRUCTION, to be given to garnishee's answer 656-658 CONSTRUCTIVE POSSESSION, of personal property, by garnishee, will not suflice to make him liable 483 CONTINGENCY, debt dependent on, will not sustain an attachment 24 will not authorize judgment against a garnishee 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 i^lace where its charter was granted 80 where chartered by two or more States, it is a domestic corporation in each 80 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 269 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 b domestic, may be garnished 469 how served with garnishment 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 how to answer as garnishee 472 foreign, may not 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 INDEX. 727 COSTS — continued. Section garnishee 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 Iiis services as a juror 49l3 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 I'ecovered 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 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 suiTer the attached effects to be inter- mingled with otiiers 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 hand.s of an agent or servant of the officer 292 e is lost, if the officer's servant or agent abandon the property, so far as subsequent attachers and adverse claimants are concerned . . . 292 e, 360 728 INDEX. CUSTODY OF ATTACHED rROPERTY — coHr/»«e./. section ullicer's failure to keep, \vliat will excuse 294 what will not excuse 295-306 CUSTO:\[ 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, unlicpiidated, arising ex contractu, will sustain attachment, if the con- tract 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 whom he at- tached 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 produce 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 . . . 548 rule of, in actions for malicious attachment 745 DAY, fractions of, considered in determining pi'iority of right among attach- ing creditors 261 ■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 422 suit brought after, is void 423 of garnishee, after his answer, arrests all proceedings against him . 658 hh of defendant, before judgment, when may be set up to prevent judg- ment against garnishee 698 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 claimant of, where the debtor has been garnished, cannot intervene in the attachment suit where the plaintiff therein has abandoned all claim against the garnishee 460 a INDEX, 729 'D:EBT — continued. Section 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 • "Ol 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, absconding, concealed, and non-resident 39-68 removing their property oJ-71 fraudulently disposing of their property 72-77 a 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 6o8 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 "i^l "> DEFENCE, garnishee may make any, against the garnishment, which he might make if sued by defendant C72 interposed by the garnishee, must be such as would avail in an action by defendant against him "82 where attachment is, and manner of pleading it 699-723 DEFENDANT, may, in the United States, appear and defend without giving special bail ;•••.• ^ 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 in personam °' 730 INDEX. DEFENDANT — coniinued. Section by appearing, and not questioning the attachment proceeding, the attat'hment will be valid, (hough the allidavit be defective ... 87 appearant'C of, when not served, to move for a dismissal of the at- tachment 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, validates the levy 195 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 a use of attached effects by, when will not destroy the attachment lien 292 a death of, when it discharges sureties in delivery bond 341 b 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 him, as executor, to him individually, where the law allows garnishment of an executor 465 h 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 may be taken in cases of garnishment 327 b no set form of words necessary to constitute 328 addition to, of terms not required by statute, does not invalidate . . 329 difference between it and bailment of attached property, and between it and bail-bond 330, 331 INDEX. 731 DELIVERY BO'SD — cojitinued. Section 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 neces- sary 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 . 331 surety in, how he may exonerate himself 335 demand for propeity 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 understand- ing 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, semble 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 propei'ty, 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 property, no action will lie against them 341 a sureties in, are released by dissolution of the attarhment .... 341 b judgment against sureties in, cannot be rendered after tlie attachment is dissolved 341 b cannot be enforced, where delivery of the property has been made by law impossible 341 c measure of recovery on 342 one joint obligor in, may, if he pay the whole judgment recovered on the bond, demand contribution from his co-obligors .... 343 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 200 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 proptrty has been removed beyond the jurisdiction of the court 335 a on receiptor of attached property, when necessary 373 732 INDEX. DEMURRER. Section to declaration will not lie, wliere the cause of action is one for which attachment may not he issued, nor for a variance between the aHiclavit 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 « 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 191a 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. .-Is 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 ^'^'^ on motion for, because the bond for attachment was executed in plaintiff's name by an attorney in fact, the attorney's authority is presumed 1*''' 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 134 h 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 a is not produced by a wrong-doer's taking the 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 h 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 retm-nable 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 INDEX. • 733 DISSOLUTION OF ATTACHMENT — coH/iww«Z. Sectiou motion for, 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 fi. titioas demands . . . 274, 275 is produced by amendment of writ of prior attacher, by striking out the name of one of two defendants ; by changing 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 defendant, 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 is not produced, as to subsequent attacher, by a mistake in taking judgment for too much, in favor of prior attacher, when the 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 attaclier; and by referring the action and all demands between prior attacher and the defend- ant, where new demands are brought into the reference . . 287, 288 III. As between diJJ'erent 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 & bailee of attached property, where he has delivered the bailed property to the owner . 384 734 INDEX. DISSOLUTION OF ATT AClUlE^iT — conilmied. Section di.-(li:irgt'S from the lion of the jittachment the property attached . . 411 ends the special ])roperty of ofKccr in attached eif'ects 426 requires the return of the attached property to the defendant or the owner 426 disdiarges 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 before 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 whether 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, cf property in garnishee's hands, will prevent its attachment for debt of assignor 527 of debt, owing by garnishee, will protect it from attachment for debt of the assignor COS, 604 valid by the law of the assignor's domicile, will be sustained 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 faiih 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 delendant 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 INDEX. 735 EQUIVOCATION, Section in garnishee's answer, effect of '^^'^ ERRORS, in judicial action, cannot be questioned collaterally 87 a EVASION, in garnishee's answer, effect of 633, 656- odo 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 295-803 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 806 property exempt from, garnishee not chargeable for 480 EXECUTOR, may not be sued as such, by attachment, unless he make himself per- sonally liable 81, 82 property in hands of, cannot be attached in a suit against a residuary legatee or a devisee 251 where by law sul)ject to garnishment, may be garnished as such in an action against him individually 465 b not chargeable as garnishee, in respect of a legacy, except where he has been ordered by the probate court to pay it 499 EXEMPTION, does not apply to a debt owing to defendant for exempt property sold by hiin 244 a must be claimed by defendant at the time of levy 19G, 244 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 attachment 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 municipal corporation from garnishment, may be waived by it . . 516 a cannot be set up by tbe 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 (•ollaterally for want of jurisdiction, and for want of jurisdiction may be rejected as a nullity 87 a 736 INDEX. EX PARTE ATTACIBIENT PROCEEDINGS — coniilc'nt of London can be luld as, under tlie custom . . . 473 a non-residi'nt of a State cannot be lield as, unless he have there property of the defendant, or be bound to pay the defendant money or deliver him goods tliere 474, 475 non-resident, garnished, should, for his own protection, answer, or judgment hy 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, uidess 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 479 not chargeable for personalty which is exempt from execution . . 480 for c/io.ses m adion of defendant in his hands . . . 481 property of defendant must be in actual possession of 482 not chargeable for property which he did not know to be defendant's, and p.irted 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 484 his possession of defendant's property must be in privity of contract and of interest with defendant 485-490 bank summoned as, not cliargeable on account of money deposited with it by the defendant fl.s' agent for others, or where depo>ited by him individually, though it was the money of his principal, if the principal notily 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 bands as suih 4yo no person can be cliarged 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 cre confurmity to law, or no lien is created .... 194 must not bt; made on property not liable to attachment 195 on property not the delendant's, makes the officer and the plaintiff trespas^e^s 196 when made under several attachments, on the same property, not the defendant's, the owner of the property cannot sue the officer wiio levied the last attachment 196 a what will amount to, lor which trespass will lie 197 officer may enter store by lorce to effect 200 but not a dwelling-house, except to reach property of a stranger secreted there 200 for a greater amount of pro[)erty than is requiied to meet the attach- ment, does not make the officer a trespasser, unless he act op- pressively 201 INDEX. 751 LEVY — continued. Section abandonment of, invalidates the attachnoent 202, 257, 290 is necessary 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-2bl 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 conformity 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 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 recovert'd, though it be greater than the amount for which the attach- ment was obtained 227 extends to judgment ultimately recovered .... 227 a is of no value, unless plaintiff obtain judgment . . . 228 in favor of plaintitf, 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, 263, 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 discontinuing his suit 262 is lost, by officer's permitting the attached property to remain in defendant's possession, unless author- ized by law 292 a on garnishee's estate, is not created by garnishment . 454 definition of 532 if garnishee have, on property in his hands, the property cannot be taken 533 must exist, however, as distinguished from mere possession . . . 536 is relinquished, if the pledgee attach the pledged property .... 540 LIMITATION, statute of, may be pleaded by garnishee against his liability to de- fendant 678 LOCKED TRUNKS OR BOXES, of defendant, of unknown contents, garnishee not chargeable on ac- count of his possession of them 451a 752 INDEX. LUNATIC, Section property of, in bands of guardian, not attacliable 251,602 M. MAIN ACTION, garnishee's relation to 691-698 MALICIOUS ATTACHMENT, action for, not affected by the execution of an attachment bond . . 154 rules governing 724-745 IMALICIOUS PROSECUTION, attachment will not lie in action for 10 MANUFACTURE, goods in process of, not attachable 250 person in possession of, may be charged as gar- nishee in respect of 464 MASTER IN 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 attachment is returnable, does not vitiate the bond . . . 127 of the amount sworn to, does not vitiate the bond 142 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 mortgaged 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 INDEX. 753 MOTION TO DISSOLVE, ETC. — confmued. Section 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 set 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 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 336 a, 419 what cannot be shown under 418 may be made by amicus curice, semble 418 a cannot be made by one not a party to the record 419 the entertainment of, for irregLdarities, is within the discretion of the court, and a refusal by the court to entertain it is not control- lable 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 of 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 516 taxes due to, cannot be attached 516 exemption of, from garnishment, may be waived by it, semhle . , . 516 b cannot be set up by defendant 658 c N. NEGOTIABLE NOTE, maker of, cannot be garnished in action against payee, under attachment 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 .... 251 NON-JOINDER, in garnishment, of some of several partners, effect upon those garnished 561-564 NON-RESIDENT, may sue by attachment 11 when may be proceeded against by attachment 57-67 property of, may be attached, though it would be exempt from attachment if he were a resident 244 a cannot be garnished, unless he have property of defendant in his possession, or be bound to pay him money, in the State where garnished 474, 475 48 754 INDEX. NON-RESIDENT — confiuned. Section when garnitiheii, should answer, to avoiil judgment by default . . . 476 may be charged as garnishee, where jointly liable with residents, and all are garnished 477 NOTICE, of prior attachment will not prevent an officer's attaching again, where the first attaching officer has relin(}uished 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 pi-opcrty 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 trespasser, 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 erro- neous and voidable, or no cause of action exist .... 185, 185 a levying attachment on property in possession of a stranger claiming title thereto, is not justified by merely producing the writ, but must prove that the defendant was indebted to the plaintiff, and that the writ was regularly issued 185 a 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, Avhere there is danger of his committing a trespass 189 to be entitled to indemnity, must notify plaintiff that he requires it, before proceeding to levy 189 may demand indemnity before selling the property 189 taking a writ, with directions to serve in a particular manner, with- out 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 INDEX. 755 OFFICER — contimied. Section is bound by his representations to plaintiff, whereby the latter is led to forego further attachment 190 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 levy 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 191 must do no wrong to defendant 194 is a trespasser ah 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 19o, 244 a levying several attachments on property not the defendant's, is not liable for levying the last one 196 6 cannot deduct costs and expenses from proceeds of sale of projierty 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 .... 200 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 trans- fers 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 attach- ment suits 263 a cannot levy attachment on propijrty in the hands of another officer, under an attachment, even tliough the other had levied on more than sufficient to satisfy his writ 267 756 INDEX. OFFICER — coniinued. Section his right to recover against an oflicer who has seized the property on which he had made a prior levy 268 seizing property in the hands of one liable for it as garnishee, must hold it subject to the prior lien of the garnishment 270 suil'ering 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 eil'ects 291 special property of, in attached i ifects, is an insurable interest . . 291 is not bound to insure his S|iecial [iroperty 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 posses- sion of attached effects 291 in case of death of, his administrator may maintain trover 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 pro- ceedings with it after the attachment, comply with all the require- ments of the law, or show some legal excuse for not doing so . 291 selling attached property without lawful authorit}', 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 attachment 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 [)roduce attached property on execu- tion, he cannot impeach plaintiff's judgment, except for fraud; nor can he take advantage of the loss of the writ of attachment . 304 may, in such action, show, in mitigation of damages, that the execu- tion has been satisfied 304 demand must be made upon, for the attached property, upon the execution 805 can he be sued by defendant for damage to attached property, while the attachment is pending? 307 INDEX. 757 OFFICER — continued. Section 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 property . 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 defendant 427 must make return of garnishment, according to law 451 (Z public, not chargeable as garnishee for money in his hands payable to defendant 493, 494 OMISSION, of recital in a writ that a bond was given, will not vitiate the attach- ment 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 OWNER, of" attached property, entitled to return thereof on the dissolution of the attachment 290, 426 P. PARTNER, 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, one of several, not chargeable as garnishee without joinder of the others 561 unless part are out of the jurisdiction 562 if part are in foreign country, those in this country cannot be charged as garnishees 564 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 567-570 758 INDEX. PARTNERSHIP CREmTS — continued. Section ■where partnership is dissolved by death of one or more partners, a debt due to tlie late firm may be attached in an action against the survivor 571 PAYMENT, by one oC several debtors not garnished, after garnishment of another jointly and severally liable with liini, will discharge garnishee . 560 voluntary, by garnishee, after garnishment, will not discharge him . 674 a by garnishee, after garnishment, is voluntary, unless made under com[)ulsioii of judicial order or process 674 a by agent of garnishee, 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 by garnishee, set up as a defence, must be a payment in fact, and not a contrivance intended to be a payment or not, as circum- stances 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 judgment be after- wards reversed 674/" by garnishee, under previous garnishment, will discharge him . . . 675 by garnishee, on irregular execution in favor of defendant, after gar- nishment, will not discharge him 676 previous, voluntary, by garnishee to creditor of defendant will not discharge him 677 by garnishee, 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 defendant . . . 710 by garnishee, wherever it would avail him, will equally avail one col- laterally and contingently bound for the debt in respect of which the garnishee was charged 710 a by garnishee, requisites of, as a defence to him against action by defendant 711 PENDING ATTACHMENT, may be pleaded in abatement of suit by defendant against garnishee for the debt 700 is good ground for a continuance while the attachment is pending . 701 when may be plead(;d puis darrein continuance 702 should have no effect upon creditor'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 defendant .... 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 INDEX. 759 PENSIONER, Section 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 the sale of which is penal, not attachable 244 h what descriptions of property are included in the term 244 c 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 paying 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 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, cannot 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 246 lent to one, cannot be attached for his debt 246 760 INDEX. PERSONAL PROPERTY — continued. Section 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 plaintiif, 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 cusiodia legis, not attachable 251, 267 in the defendant's present use, maybe attached, but not if worn about his person as })art 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 another officer, effect of 292 c removal of, by officer, into a foreign jurisdiction, effect of . . . . 292 d 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 what descriptions of, will charge garnishee 463, 480, 481 what possession of, will charge garnishee 482-491 PLAINTIFF, obtaining attachment irregularly, is a trespasser ab initio, if the attach- ment be set aside for irregularity 185 b when sued for trespass, cannot set up as a defence that he returned the property to the defendant, unless the latter accepted it • . 185 c INDEX. 761 PLAINTIFF — contiiuied. Section obtaining attachment irregularly, when so sued, cannot show, in miti- gation of damages, that the property was afterwards sold under execution in his favor, but may show such sale by another creditor 185 c 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 atta<'hed property, than the defendant had when the attachment was levied 223 in attachment, cannot maintain action against a trespasser for violat- ing officer's possession of attached property 291 in first attachment, which was quashed, but the judgment quashing it was reversed, may recover from subsequent attacher the pro- ceeds 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, cannot 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 garnish- ment 529 garnishing himself, cannot plead the garnishment either in abatement or in bar of a suit by defendant against him 703 & 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 may be charged as garnishee in respect thereof, if he relinquish his lien by attaching the property . . . 540 POSSESSION, what will be sufficient, to constitute an attachment 256 by garnishee of defendant's property, what will make him liable . . 482, 491a PRIORITY, over other debts of an intestate garnishee, is not obtained by judg- ment against garnishee's administrator 226 • in determining it, as between dififerent levies of attachments, fractions of a day will be considered 261 lost by defect in plaintiff's proceedings, cannot be regained by pro- ceedings in equity 262 of service, among several attachments, how settled 265,266 PRIVATE PAPERS, not attachable 249 762 INDEX. PRIVILEGED COMIMUNICATION, Section 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, necessary to charge garnishee for prop- erty 485-490 so for indebtedness 546 PROMISSORY NOTE, garnishee holding for defendant, is not chargeable for 481 unnegotiable, maker of, may be charged as garnishee of payee, at any time before he receives notice of its assign- ment 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, whether the assignment be legal or equitable 576,577 negotiable, maker of, cannot be garnished in action against payee, under an attachment served before its matu- rity, 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 against the payee 703 a notice of assignment of, should be given by assignee to maker, to pre- vent the latter's being charged as garnishee of the payee . . 718, 719 maker of, pleading recovery against him as garnishee of payee, need not aver that he had no 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 pavee, 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 PUBLIC OFFICER, is not, as such, liable to garnishment 493 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 attach- able interest therein 246 INDEX. 763 R. RATIFICATION, Section by plaintiff, of the unauthorized act of a party 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 RECEIPTOR, (See Bailment of Attached Property.) 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 an- other to another State, and thei-e 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, unless the court has ordered it to be paid to the defendant .... 509 a RECITAL, omission of in a writ, that a bond was given, will not vitiate the at- tachment 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 at- tachment 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 attachment, 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 attachment 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 712 764 INDEX. RECOUPMENT, Section garnishee is entitled to, against his liability to defendant .... 689 a REFERENCE, of attaehment suit, and all demands between plaintilF and defendant, to arbitration, does not dissolve attachment, if no new demands are included 288 judgment on, against garnishee, will protect him 714 REFUSAL TO ANSWER, by garnishee, effect of CSC, C57 REMOVAL, of property, as a ground of attachment C9-71 attached, into a foreign jurisdiction, by the attaching t officer, effect of 292 d of officer from office, does not excuse his failure to produce at- tached 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 BOND, (See Dklivery 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 69 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 b when made, is beyond the reach of the officer or the court, unless a proper case for amendment be made 211 amendment of, when may be allowed by court 212 may not be amended as a matter of right in the officer 213 amendment of, relates to the time when the original return was made 215 where leave to amend is asked, there should be something to amend by 217 INDEX. 765 RETURN — continued. Section of attachment of real estate, how made 236-238 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 satisfiictory 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 revp:rsal, J of judgment for plaintiff, not on the merits, after he has received proceeds of sale of attached property, does not entitle defendant 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 liim 673 S AFE-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 451 a 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 SECURITY," collateral, the holding of, by plaintiff does not prevent his suing by attachment 35 SET-OFF, when pleadable by garnishee, against his liability to defendant . 683-689 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 263 766 INDEX. SIMULTANEOUS ATTACHMENTS — continued. Section officer (.'xecutiiii;;, should retVr 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 returns shows the order in priority 265 officers executing, may divide the property 266 SLANDER. in action for, attachment will not lie 10 SPECIAL PROPERTY, is vested in officer by levy of attachment 291 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 pro- ceedings with 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 garni.shed 516 a agent of, cannot be garnished in respect of money held by him as such 516 a 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 insurance 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 third persons, set up in discharge of his liability 595 garnishee not bound to set up, to avoid his verbal promise .... 595 STIPULATION, unsealed, does not meet tlie requirements of a bond with stated penalty 125 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 cor- porations in other States 244 when attachable, how the attachment is made . 259 STOPPAGE IN TRANSITU, vendor's right of, not precluded by attachment 245 INDEX. 767 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 pro- cured 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 executing, may in his return indicate the order of their service, 265 a should be placed in 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 sure- ties," 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 768 INDEX. SUEETIES — continued. Section in attachment bond, if statute require tliem 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 liabihty on the bond has accrued, where ])laintiir needs the testimony of tlie orijjinal 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 on the bond with- out previous recovery of damages in a distinct action 166 a in delivery bond, may move to quash attachment 336 «, 419 in officer's official bond, liable for his failure to return attached prop- erty 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 SURVIVING PARTNER, in action against, for his individual debt, a credit of the late partner- ship 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 indebtedness 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 couipany 465 a TIME, 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 defendaut, may be made, subject to the at- tachment 222 made after the attachment, can- not defeat it 224 INDEX. 769 TREASURER, Section 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 6 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 an officer for a violation of his possession of attached effects 291 TRUSTS, o-arnishment cannot overthrow, in order to reach money supposed to belong to a debtor 454 h 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, cannot be charged as garnishee of the cestui que trust, where, to hold the money in that proceeding, would defeat the trust 454 6 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 their hands as such 511 TRUSTEE PROCESS, a term used in New England in the sense of garnishment process . 451 u. UNCERTAINTY, in affidavit, will vitiate it 104 UNLIQUIDATED DAMAGES, when will sustain attachment 13-23 49 770 INDEX. UNLIQUroATED DAMAGES — continued. Section when not 32-554 claim a.u;ainst