5eiS3 
 
f02(p 
 
 (flnrnpll 21am #rlynnl Sjtbrarji 
 
Cornell University Library 
 KF 9026.R77T6 
 
 A treatise by outline cases and annotati 
 
 3 1924 020 198 473 
 
Cornell University 
 Library 
 
 The original of this bool< is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020198473 
 
A TREATISE 
 
 BY OUTLINE, CASES AND ANNOTATIONS 
 
 ON THE 
 
 COMMON REMEDIAL PROCESSES 
 
 Or the Means by Which Judgments Are Enforced; and 
 Principally of Attachment, Garnishment, Executions 
 and Replevin; and Incidentally of the Judg- 
 ments Enforced, the Nature, Essen- 
 tials, Record and Satis- 
 faction of Them. 
 
 PREPARED SPECIALLY FOR STUDENTS 
 
 BY 
 
 JOHN R. ROOD 
 Author of "A Treatise on theTaw of Garnishment ' 
 and an Instructor in the Law Department 
 of the University of Michigan. 
 
 GEORGE WAHR 
 
 Publisher and Bookseller 
 
 Ann Arbor, Mich. 
 
 I goo. 
 
Copyright, igoo 
 By John R. Rood. 
 
I'REFACE. 
 
 The following pages are the result of an attempt to prepare, 
 for law students in general and those in the University of Michi- 
 gan in particular, a course of study on the general principles of the 
 law of judgments with especial reference to the means of enforc- 
 ing them, the principal of which are attachment, garnishment and 
 executions. 
 
 In view of the great practical importance of this branch of the 
 law it is not a little surprising to find no previous attempts 
 in the same directioii ; and thp.! so few of our large law schools ■ 
 have, up to this time, undertaken to give instruction upon it. 
 Exhaustive works on judgments, attachment, garnishment 
 and executions, treated separately, will be found in the office of 
 every lawyer, and are among his most used tools. The belief that, 
 with all these working tools, no concise and comprehensive treatise 
 designed especially for the student will be found, affords the ex- 
 cuse for the appearance of the present volume. 
 
 The cases have been selected with considerable care to the 
 following features : conciseness, comprehensiveness, perspicuity 
 and accuracy of statement. Other things being equal opinions by 
 judges of fame as jurists have been chosen. But this has been 
 a last consideration ; accuracy, discrimination and brevity of the 
 statements of law and the illustrative character of the case, being 
 first considered, then its importance in the subject as a leading or 
 ruling case, and, lastly, the reputation of the court and jurist rend- 
 ering the opinion. Opinions containing unsound statements of 
 law obiter or arguendo have been avoided as far as possible, but 
 when for any reason deemed preferable, a note has been made of 
 the fact at the foot of the case, and reference given to decisions on 
 the question, the object being that the student may rely upon the 
 comments of the court as well as upon the decision in the case. 
 
 As the continuity of thought is necessarily somewhat broken 
 
4 PREFACE. 
 
 and the plan of treatment much obscured when the deductive or 
 case system of study is pursued without the aid of any text to 
 indicate the relation of the parts to each other, closer attention to 
 the plan, or scheme of treatment is essential ; for unless the student 
 comprehends the divisions of the subject and the relation of the 
 parts to each other his labor is expended in vain. It is very desir- 
 able, therefore, that the student give close attention to the analysis 
 given at the beginning of the book and at the opening of each ma- 
 jor division and note the transition from one topic to the next. To 
 assist in this direction headings corresponding to those in the 
 analysis are given as each major and minor topic throughout the 
 book is introduced. 
 
 The pages of the original reports from which the selected 
 cases are taken are indicated by the figures enclosed in brackets, 
 thus : [2/8]. Any om.ission of matter appearing in the opinion in 
 the official reports is indicated by asterisks, thus ; * * * 'Yhe 
 titles to the cited cases, which are of especial value from the stu- 
 dent's point of view, are printed in boldface. 
 
 John R. Rood. 
 University of Michigan, Jan. 25, 1900. 
 
TABLE OF CONTENTS. 
 
 I. introduction, 13-18. 
 
 1. IlKMEDiES Explained and Outlined, 13. 
 
 2. Remedial Peocesses Explained Ai\d Outlined, 14. 
 
 3. Vakious Writs Explained a.nd Pbfined, 15. 
 
 II. Legislative Control of Remedial Processes, 19-28. 
 
 1. Power to Restrict the Use of the Processes, 
 
 A. As to Existing Contracts and Judgments, 
 
 B. As to Future Contracts and Judgments, 
 
 2. Power to Extend the Use and Provide New Processes, 
 
 A. As to Existing Contracts and Judgments, 
 
 B. As to Future Contracts and Judgments, 
 
 3. Power to Change the Forai, Procedure, etc., 
 
 III. On What Judgments and in What Actions the Processes are 
 
 Available, 29-59. 
 
 1. Executions, 29. 
 
 2. Attachment and Garnishment, 32. 
 
 A. Caution, 32. 
 
 B. In What Forms of Action Attachment and Oarnishment are Avail- 
 
 able, 32. 
 a. Actions Ex Contractu or Ex Delicto, 32. 
 6. Special Statutory Actions, 34. 
 
 C. On Demands of What Character Available, 37. 
 a. Ex Contractu or Ex Delicto, 37. 
 
 6. Liquidated or Unliquidated, 39. 
 e. Mixed Demands, 42. 
 
 D. The Statutory Exigency or Ground for Attachment, 46. 
 a. Necessity of, Who May Object and How, 46. 
 
 6. As to All of the Defendants or Partial and Several, 47. 
 
 c. Existing as to the Whole Demand or Only a Part, 50. 
 
 d. Any Legal Ground or Only the Alleged Ground, 52. 
 
 e. Precision Required iu the Allegations and Proof, 52. 
 
 f. Contracted or Payable in the State, 54. 
 
 g. Fraudulently Incurred, 57. 
 
 7i. Disposition of Property to Defraud Creditors, 59. 
 i. Debtor Absconding or Non-Eesldent, 59. 
 
 IV. At What Stage of the Cause the Processes Are Available, 60-75. 
 
 1. Attachment and Gaknishmisnt, 60. 
 
 A. Hoio Early the Processes May Issue, 60. 
 
 B. How Late Garnishment May Issue, 62. 
 
 C. How Late Attachment may Issue, 62. 
 
 2. Executions, 65. 
 
 A. How Early Execution May Issue, 65. 
 
 a. Before Final Judgment is Entered, 65. 
 
 6. Before Period is Expired During Which Execution was 
 Stayed, 69. 
 
 B. How Late Execution May Issue, 73. 
 
b TABLE OF CONTENTS. 
 
 V. To Whom the Processes are Available, 76-86, 
 
 1. To THE CEEDITOE IN THE SuiT OB JUDGMENT, 76. 
 
 2. To THE Assignee of the Judgment ok Demand, 76. 
 
 3. To the Attorney foe the Ceeditou ok the Assignee, 79. 
 
 4. To the Defendant in the Action Who - Has Recovbbbd Judgmeni 
 
 Thekein, 79. 
 
 5. To the Judgment Debtoe, 81. 
 
 6. To the Officees of Court — Cleeks, Sheriffs, Jurors, Witnesses, 
 
 &c. — Whose Fees are Taxable, 81. 
 
 7. Unauthorized Issuance — Objection, How Available — Ratification 
 
 AND Waiver, 84. 
 
 8. Remedies of Person Entitled to Peocess and Denied It, 85 
 
 A. By Action for Damages. 85. 
 
 B. By Mandamus, 85. 
 
 9. FoEM OF Application foe Process, 85. 
 10. Who May Maintain Replevin, 85. 
 
 VI. Against Whom the Processes Are Available, 87-134. 
 
 1. Peesons Undee Legal Disability — Femes Coveet, Infants, and Per- 
 
 sons NoN Compos JIentis, 87. 
 
 A. As Principal DeMors, 87. 
 
 B. As Garnishees. 89. 
 
 2. GuAEDiANS, Executors, Administrators, and the Property They 
 
 Hold as Such, 91. 
 
 A. As Principal Debtors, 91. 
 
 u. The IndiTidiial Property of tlie Executoi', Administrator or 
 
 Guardian, 91. 
 6. The Property o( the Estate or Ward, 94. 
 
 B. As Garnishees, 97. 
 
 3. Parties to the Action as Gaenishees, 97. 
 
 A. Plaintiffs, 97. 
 
 B. Defendants, 102. 
 
 4. Quasi Public Corporations, 104. 
 
 A. As Principal Dehtors, 104. 
 
 B. As Garnishees, 112. 
 
 5. Public CoEPOE.vrioNs, 120. 
 
 A. As Principal Dehtors, 120. 
 
 B. As Garnishees, 123. 
 
 6. State and Nation.al Governments, 128. 
 
 A. As Principal Dehtors, 128. 
 
 B. As Garnishees, 132. 
 
 7. Against Whom Replevin Lies, 134. 
 
 Vil. Concurrent Use of Several Processes, 135-140. 
 
 Vill. What' Courts May Issue the Processes, 141-148. 
 
 1. Without the Transcript Statutes, 141. 
 
 A. To Enforce Their Own Judgments, 141. 
 a. The Common Law Processes, 141. 
 
 h. The Statutory Processes, Unknown to the Common Law, 141. 
 
 B. To Enforce the Judgments of Other Courts, 142. 
 
 2. Under the Transcript Statutes, 145. 
 
 IX. The Execution of the Processes.-r-Where, When, by Whom, and 
 How It Should Be Made, 149-171. 
 
 1. Where the Processes May Run and be Executed, 149. 
 
 2. When the Processes May be Executed, 156. 
 
 A. How Early. 156. 
 
 a. Before the Officer Receives the Writ, 156. 
 6. After the Officer Receives the Writ, 156. 
 
TABLE OF CONTENTS. ' 
 
 li. How Late, 156. 
 
 a. Witliout Liability by tlie Officer to the Creditor, 156. 
 6. How Late tbe Levy and Service May be Made and be Valid, 156. 
 u. How Late the Proceedings after Levy and Service May be Made 
 and be Valid, 156. 
 
 3. By Whom the Peoce.sse.s Mat be Executed^ 157. 
 
 A. An Officer Without the Writ, 157. 
 
 B. A PciKon Not an Officer, 157. 
 
 C. A Person Assisting an Officer Present Having the Writ, 157. 
 
 D. An Officer Beyond the Limits of His County or Precinct, 158, 
 B. A Party to the Action or Person Interested, 158. 
 
 F. An Officer to WJwm the Writ is not Directed, 160. 
 
 4. The Lbvy^ 164. 
 
 A. On Land, 164. 
 
 a. Sufficiency of the Indorsement or Description to Identify the 
 
 Property, 164. 
 6. The Kecording of the Levy, 164. 
 
 B. On Personalty, 164. 
 
 a. Right of the Officer Levying to Break Doors, Etc., 164. 
 
 6. What Constitutes a Valid Levy or Seizure, 166. 
 
 c. Distinction Between the Levy and the Indorsement, 166. 
 
 d. Necessity of Seizure After Receiving the Writ, 166. 
 
 e. Necessity of Removing the Goods, 166. 
 
 f. Necessity of Indorsing the Levy on the Writ, 166. 
 
 g. EfCect of Illegal Act in Obtaining the Levy, 166. 
 
 5. Power of the Coiiht Ovee its Pkocesses^ 167. 
 
 X. What May be Taken Under the Processes, 172-244. 
 
 1. Under Execution, 172. 
 
 A The Body of the Debtor, 172. 
 
 B. The Real Estate of the Debtor. 172. 
 
 C. The Personal Estate of the Debtor, 183. 
 
 2. Under AttachmenTj 184. 
 
 A. Comparative Scope of This and Other Processes, 184. 
 
 B. Importance of Personal Service on the Dehtor, 185. 
 
 3. Under Garnishment, 187. 
 
 A. General Principles and Grounds of Liability, 187. 
 
 B. Charging the Garnishee for Property in his Possession, 191. 
 
 a. Property Capable of Levy Under Attachment or Execution, 191. 
 6. Necessary Title in Garnishee, 191. 
 
 c. Necessary I-*ower of Control by Garnishee, 193. 
 
 d. Effect of Possession of Legal Title Without Actual Possession 
 of the Property, 197. 
 
 e. Mortgaged Property, for the Mortgagor's Interest, 200. 
 
 f. Fractional Interests of Tenants in Common, Partners, etc., 203. 
 
 g. Choses in Action and Indicia of Title, 208. 
 h. Property in Gremio Legis, 212, 
 
 C. Charging the Garnishee as Debtor, 224. 
 
 a. Character of Demand, Absolute or Contingent, 224. 
 
 6. Character of Demand, Ex Contractu or Ex Delicto, 229. 
 
 0. Character of Demand, Liquidated or Unliquidated, 231. 
 
 d. Character of Demand, 'Payable in Cash or in Kind, 231. 
 
 e. Demands for the Payment of Which the Defendant Holds Se- 
 
 curity, 232. 
 
 f. Demands Evidenced by Commercial Paper, 234. 
 
 g. Demands Representing the Proceeds of Exempt Property, 237, 
 A. Demands in Suit or Judgment, 240. 
 
 i. Effect of Orders, Checks, etc., as Assignments of the Demand', 
 
 241. 
 ;. Burden of Proof, etc., 243. 
 
« TABLE OF CONTENTS. 
 
 XI. Character of the Creditor's Lien or Right Under the Processes, 
 
 245-292. < 
 
 1. Right to the Spbch'IC Peopeett Aftee Sale Undee a Junior Wbit, 
 
 245. 
 
 2. Eight to the Peoceeds in Couet When the Officer Has Levied and 
 
 Sold Undee a Jdnioe Weit, 247. 
 
 3. Right to Follow the Proceeds After Wrongful Payment to a 
 
 Junior Ceeditoe, 252. 
 
 4. Right to Recover of the Officee and His Sueeties, 255. 
 
 A. For Failure to Execute the Writ, 255. 
 
 a. Before the Property was Levied on Under Other Writs, 255. 
 6. Before the Return Day, 263. 
 
 u. For Failure to Complete the Execution of the Process after the 
 Return Day and the Expiration of the Officer's Term, 267. 
 
 B. For the Value of Property 2'aken Under the Writ and Surrendered, 
 
 Lost, or Destroyed, 269. 
 
 5. Right Against a Puechasee foe Value at Peivate Sale, 273. 
 
 6. Right Against Another Officer and Ceeditoe Who Have Taken the 
 
 Property Undee a Junior Writ, 275. 
 
 7. Right to the Property After Wrongful Release or Abandonment 
 
 BY OfficbEj 279. 
 
 A. Against the Debtor, 279. 
 
 B. Against a Suhsequeiit Purchaser for Value, 280. 
 
 8. Chaeactee of the Lien Acquired by Garnishment^ 282. 
 
 9. How the Debtor's Inteeest May be Foreclosed and the Lien Ripened 
 
 INTO AN Absolute TitlEj 288. 
 10. Effect of the Death of the Judgment Debtor^ 292. 
 
 XII. The Rule of Priority, or When the Lien Attaches, 293-294. 
 
 1. As to Writs in the Hands of the Same Officer, 293. 
 
 A. Common Law Rule, 293. 
 
 B. Rule Under Statute. 29, Car. II. c. 3, §§ 13-16, 293. 
 
 C. . Modern American Rule, 294. 
 
 a. Eights of Creditor with Senior Writ and Junior Levy, 294. 
 6. Rights of Creditor with Junior Writ and Senior Levy, 294. 
 
 2. As to Writs in the Hands of Different Officers^ 294. 
 
 3. Between Levying and Garnishing CeeditoeSj 294. 
 
 XIII. How the Creditor's Lien or Right IVIay be Lost or Become Sub- 
 
 ordinate, 295-317. 
 
 1. By Payment of the Demand^ 295. 
 
 2. By Express Release^ 295. 
 
 3. By Abandonment oh Laches, 295. 
 
 A. JustiflaWe Ahondonment by the Ofllcer, 295. 
 
 B. UnjustiflaMe Abandonment by the Offlcer, 298. 
 
 C. Abuse of Process in Failing to Prosecute, 298. 
 
 D. Talcing Out New Writ and Making Second Levy, 302. 
 
 E. Electing One of Several Remedies, 304. 
 
 4. By Setting Aside the Judgment on Which the Process was Based, 
 
 307. 
 
 5. By Judgment in Favor of the Defendant in the Attachment, 307. 
 
 6. By the Defendant Giving the Creditor Bond on Replevin, Appeal, 
 
 Eeror, Supersedeas, Injunction, &c., 311. 
 
 7. By a Similar Bond Given by a Claimant, 314. 
 
 XIV. Satisfaction of the Judgment, 318-336. 
 
 1. By Issuance of Execution and Levy Under It, 318. 
 
 2. By Recovery of Judgments Against Garnishees, 330. 
 
TABLE OF CONTENTS. 9 
 
 3. By Waivek of Pbiokitt ow Lien Undeu the Peocess on Judgment, 331. 
 
 4. By Retuen of Execution Satisfied oe BntBy of Satisfaction on the 
 
 Recokd, 336. 
 
 5. By Payment, 336. 
 
 XV. Right of the Creditor After Satisfaction of Record Without 
 
 Actual Receipt of Payment^ 337-345. 
 
 1. To Action on the Judgment oe on the Original Demand, 337. 
 
 2. To Puethee Phocess of Cockse, 338. 
 
 3. To Fuethbb I'kocess on Motion oe Sciee Facias, 340. 
 
 XVI. Liability of Officers and Their Sureties, 346-351. 
 
 1. To THE CEEDITOES-IN WHOSE FAVOE PEOCESSEs" ABB ISSUED, 346. 
 
 2. To THE Debtors Against Whom Pkocesses aeb Issued, 346. 
 
 3. To Strangers to the Peocbsse.s, 346. 
 
 XVII. Liability of the Creditors, 352-354. 
 
 1. To THE Officers Executing Their Pkocesses, 352. 
 
 2. Fob THE Torts of the Officers Executing Their Peocesses, 354. 
 
 XVIII. Garnishment as a Defense, 355-361. 
 
 1. Garnishment Pending, 355. 
 
 2. Garnishment Judgment Paid oB Unpaid, 358. 
 
 3. Necbssaey Proof to Make Out a Defense, 358. 
 
TABLE OF CASES REPORTED. 
 
 Acton V. Knowles, 14 Ohio St. 18 298! 
 
 Adams v. Smallwood, 8 Jones L (N. Car.) 258 139' 
 
 Albrecht v. Long, 25 Minn. 163 257 
 
 Albrecht v. Long, 27 Minn. 81 260 
 
 Allen V. Hall, 46 Mass. (5 Mete.) 263 .' 187' 
 
 Avery v. Monroe, 172 Mass. 132 199 
 
 Bacon v. Cropsey, 7 N. Y. 195 69 
 
 Bank of Pennsylvania v. Winger, 1 Rawle 295 331 
 
 Bates V. CWcago, M. & St. P. Ry. Co., 60 Wis. 296 112 
 
 Bostwick V. Benedict, 4 S. Dak. 414 147" 
 
 Brice v. Carr, 13 Iowa 599 SSO" 
 
 Brown V. Davis, 18 Vt. 211 191 
 
 Brown v. Wiley (Ga.), 32 S. B. 905 102 
 
 Buchanan v. Alexander, 45 U. S. (4 How.) 20 132' 
 
 Burk V. Campbell, 15 Johns, (N. Y.) 456 263 
 
 Burton v. Wilkinson, 1 8 Vt. 186 164 
 
 Bybee v. Ashby, 7 111. 151 160 
 
 Caldwell v. Stewart, 30 Iowa 379 232 
 
 Carter v. State, 42 La. An. 927 128 
 
 Clarke v. Miller, IS Barb. Sup. (N. Y.) 269 142 
 
 Clarkson v. White & Arnold, 4 J.J. Marsh. (Ky.) 529 84 
 
 Colyer v. Higgins, 62 Ky. (1 Duv.) 6 267- 
 
 Commonwealth v. Magee, 8 Penn. St 240 . . . . ; 167' 
 
 Conn V. Caldwell, 6 111. 531 185. 
 
 Dillon V. Burnham, 43 Kan. 77 87 
 
 Edwards v. Kearzey, 96 U. S. 595 19 
 
 Elliott V. Jackson, 3 Wis. 649 37' 
 
 Bntsminger v. Jackson, 73 Ind. 144 85 
 
 Erickson v. Duluth, S. S. & A. Ry. Co., 105 Mich. 415 307 
 
 Erskine v. Staley, 12 Leigh 406 282' 
 
 Bsler V. Kent Circuit Judge, ] 08 Mich. 543 79 
 
 Evans v. Barnes, 32 Tenn. (2 Swan) 291 302' 
 
 Ferris v. Ferris, 25 Vt. 100 32, 
 
 Field V. Macullar, 20 111. App. 392 252 
 
 First National Bank v. Davenport &St. P. Ry. Co., 45 Iowa 120 193. 
 
 Fitzgerald, Matter of, 2 Caines (N. Y.) 318 52 
 
 Foster v. Singer, 69 Wis. 392 224r 
 
 Freeman v. Caldwell, 10 Watts 9 34a 
 
 Gardner v. Mobile & N. R. R. Co., 102 Ala. 635 104 
 
 Graighle v. Notnagle, 1 Peters, U. S. C. C. 245 97 
 
 Green v. Burke, 23 Wend. 490 318 
 
 Gutterson v. Morse, 58 N. Hamp. 529 197 
 
 Hall V. White, 106 Mass. 599 134 
 
 Hamilton v. Mooney, 84 N. Car. 12 334 
 
 Handy v, Dobbin, 12 Johns. (N. Y.) 220 184 
 
 Harbert's Case, 3 Coke 11 172: 
 
 Hargan v. Burch, 8 Iowa 309 60 
 
 Hartleib v. McLane, 44 Pa. St. 510 269 
 
 Hawes v. Clement, 64 Wis. 152 42: 
 
 Heineman v. Schloss, 83 Mich. 153 28 
 
TABLE OF CASES REPORTED. 1 ( 
 
 Hewitt V. Wagar Lumber Co., 38 Mich. 701 243 
 
 Holker v. Hennessey, 141 Mo. 527 . „ 212 
 
 Hudson V. Dangerfleld, 2 La. 63 14a 
 
 Hudson V. Saginaw Circuit Judge, 114 Micli. 116 216 
 
 Hughes V. Streeter, 24 111. 647 33& 
 
 Illinois Central R. R. Co. v. Weaver, 54 111. 319 34 
 
 Jackson V. Burke, 51 Tenn. (4 Heisk.) 610 52 
 
 Jones' Adm'r v. Crews, 64 Ala. 368 231 
 
 Jones V. Jones, 1 Bland Ch. (Md.) 443 176 
 
 Keniston v. Little, 30 New Hamp. 318 91 
 
 Kentzler v. Chicago, M. & St. P. Ry. Co., 47 Wis. 641 149 
 
 Klein v. New Orleans, 99 U. S. 149 120 
 
 Knox V. Webster, 18 Wis. 406 255 
 
 Lammon v. Peusier, 111 U. S. 17 346 
 
 Ledyard v. Jones, 7 N. Y. 550 264 
 
 Lehmann v. Parwell, 95 Wis. 185 229 
 
 Locke V. Hubbard ,9 S. Dak. 364 65 
 
 McGarry v. Lewis Coal Co., 93 Mo. 237 280 
 
 McGraw v. Memphis & O. Ry. Co., 45 Tenn. (5 Coldwell) 434 195 
 
 M'Gregor v. Brown, 22 Mass. (5 Pick.) 170 291 
 
 Mariner v. Coon, 16 Wis. 465 73 
 
 Matter of Fitzgerald, 2 Caines (N. Y.) 318 52' 
 
 Memphis v. United States, 97 XT. S. 293 25 
 
 Meyer v. Evans, 27 Neb. 367 : 50 
 
 Miller v. Parnell, 6 Taunton 370 135 
 
 Moore v. Davis, 57 Mich. 251 241 
 
 Moore v. Gilmore, 16 Wash. 123 203 
 
 Nelson v. Cook, 17 111. 443 352 
 
 Old Second National Bank v. Williams, 112 Mich. 564 208 
 
 Ordenstein v. Bones (Arizona Ter.) 12 Pac. 614 54 
 
 Osgood v. Brown, Preem. (Miss.) 392 SI 
 
 Payne v. Drewe, 4 East 523 275 
 
 Pennsylvania, Bank of, v. Winger, 1 Rawle 295 331 
 
 Petrie v. Paine, 9 Vt. 271 46 
 
 Piper V. Blwood, 4 Denio (N. Y.) 165 337 
 
 Pontius V. Nesbit, 40 Pa. St. 309 136 
 
 Pracht V. Pister, 30 Kansas 568 62 
 
 Primrose v. Gibson, 2 Dow. & R. 193 136 
 
 Rahm v. Soper, 28 Kansas 529 145 
 
 Reeves v. Sebern, 16 Iowa 234 273 
 
 Reid V. Lindsey, 104 Pa. St. 156 314 
 
 Reynolds v. Haines, 83 Iowa 342 237 
 
 Roberts v. Connellee, 71 Texas 11 29 
 
 Rocco V. Parczyk, 77 Tenn. (9 Leaj 328 311 
 
 Rockhill V. Hanna, 56 U. S. (15 How.) 189 304 
 
 Russell V. Lawton, 14 Wis. 202 261 
 
 Schuylkill County's Appeal, 30 Pa. St. 358 247 
 
 Scott V. Rohman, 43 Neb. 618 220' 
 
 Seawell v. Murphy, 3 Tenn. (Cooke) 478 141 
 
 Singletary v. Carter, 1 Bailey L. (S. Car.) 467 158 
 
 Sir William Harbert's Case, 3 Coke 11 172 
 
 Smallcomb v. Cross & Buckingham, 1 L. Raym. 251 245 
 
 Smith V. Menominee Circuit Judge, 53 Mich. 560 200 
 
 Smith V. Osgood, 46 N. Hamp. 178 295 
 
 Spring, V. Ayer, 23 Vt. 516 137 
 
 Steele v. Thompson, 62 Ala. 323 76 
 
 Strock V. Little, 45 Pa. St. 416 33 
 
 Sutton V. Hasey, 58 Wis. 556 ; 13S 
 
 Thompson v. Gainesville National Bank, 66 Texas 156 234 
 
12 TABLE OF CASES REPORTED. 
 
 Toledo, W. & W. Ry. Co., v. Reynolds, 72 111. 487 154 
 
 United States v. Drennen, Hempst. XJ. S. C. C. 320 94 
 
 "Wachter v. Pamachon, 62 Wis. 117 , 57 
 
 "Waterbury v. Board of Commissioners, 10 Mont. 515 123 
 
 Watson V. Reissig, 24 111. 282 340 
 
 Webber v. Bolte, 51 Mich. 113 227 
 
 Wells V. American Express Co., 55 Wis. 23 358 
 
 Wilder v. Eldridge, 17 Vt. 226 89 
 
 Wilder v. Weatherhead, 32 Vt. 765 288 
 
 Wiley V. Sledge, 8 Ga. 532 47 
 
 Wills V. Chandler, 1 McCrary, U. S. C. C, 276 81 
 
 Wilson V. Louis Cook Manuf'g. Co., 88 N. Car. 5 39 
 
 Yazoo & M, V. Ry. Co. v. Pulton, 71 Miss. 385 355 
 
COMMON REMEDIAL PROCESSES. 
 
 I. INTRODUCTION. 
 
 1. Remedies Explained and Outlined, 13. 
 
 2. Remedial Processes Explained and Outlined, 14. 
 
 3. Various Writs Explained and Defined, 15. 
 
 1. REMEDIES EXPLAINED AND OUTLINED. 
 
 A remedy is a cure or corrective. If it does not correct it is 
 not a remedy. A remedy apart from tlie means of redress is a 
 visionary thing ; therefore it is a misnomer to speak of legal reme- 
 dies aside from the means of enforcement. But actions and judg- 
 ments have been called remedies so loiig that we bow to the cus- 
 tom, and to distinguish our enquiry concerning the means of en- 
 forcing judgments we entitle it "Common Remedial Processes."' 
 Remedies for wrongs or injuries to person or property are af- 
 forded either : i . By private parties, for example, self defense, 
 peaceable entry, abatement of nuisances, recaptions, etc., or 2. By 
 the government. The classification of the remedies furnished by 
 the government appears from the following table. 
 
 o 
 
 1. Through the Leg- 
 islative Depart- 
 ment, e.g., healing 
 acts, etc. 
 
 2. Through the Exe- 
 cutive Department, 
 c. g., police pro- 
 lection, etc. 
 
 3. Through 
 the Judicial 
 Department. - 
 
 I. By the Law 
 Courts. 
 
 I. Extraordinary Le- 
 gal Remedies. 
 
 2. Common 
 Legal Rem- 
 edies. 
 
 Error, 
 Certiorari, 
 Mandamus, 
 QuoWarranto,. 
 ■i Procedendo, 
 Prohibition, 
 Habeas Cor- 
 pus and 
 others. 
 
 1 . An award of a 
 specific chattel. 
 
 2. Ao award of a 
 specific parcel of 
 land. 
 
 3. An award of a cer- 
 tain sum in money. 
 
 4. Any combinatioa 
 of these. 
 
 2. By the Courts of 
 Chancery. 
 
 3 . By Special Courts, 
 e. g , Orphan's 
 
 Courts, 
 Admiralty Courts, 
 Courts Martial, etc. 
 
 Injunctions, 
 
 Specific Performance, 
 
 Reformation of In- 
 struments, 
 
 Receiverships, 
 
 Winding up Affairs 
 and many others. 
 
■14 INTRODUCTION. - 
 
 The field of our enquiries is restricted to the means of en- 
 forcing or obtaining satisfaction of the awards commonly made by 
 the law courts. What these awards or judgments are appears 
 from the above table, which is given to remind the student of the 
 latitude, longitude, and area of our subject, rather than as a logical 
 analysis. 
 
 It will be observed that the classification is not strictly logical ; 
 and from the nature of things no such a classification is possible. 
 For example, in the first division, remedies afforded by private 
 persons, the remedy and the means of enforcing it are inseparable. 
 The party himself is judge, jury and sheriff. He decides his own 
 case, selects his remedy, and enforces it himself. But we are con- 
 cerned only with the means of enforcement. The same criticism 
 applies to the remedies afforded by the executive department of 
 the government; for here, also, the officer decides the case, selects 
 the remedy, and immediately proceeds to 'enforce it. 
 
 This last thought reminds us that courts are established for 
 no other purpose than to decide in particular cases whether the 
 party complaining is really aggrieved and to what remedy he is 
 entitled. 
 
 2. REMEDIAL PROCESSES EXPLAINED AND OUTLINED. 
 
 The extraordinary legal remedies above named are usually 
 enforced and made eft'ectual by proceedings for contempt of court, 
 tmder various writs, usually beginning with an order on motion 
 by the aggrieved party and notice to the offending party that the 
 latter show cause why he should not be amerced or his person im- 
 prisoned for his failure to obey the order of the court. In many 
 cases an action for damages also lies in favor of the injured 
 against the injuring party. The decrees of the courts of chancery 
 are enforced in much the same way, and also formerly by the 
 tedious proceedings in sequestration which have now been gener- 
 ally supplanted by statutes providing similar means as are em- 
 ployed to enforce the common judgments at law. 
 
 With this much premised let us enquire what means exist for 
 the enforcement of the remedies commonly awarded by the law 
 courts as above indicated. These means or processes as they are 
 
VARIOUS WRITS EXPLAINED. 
 
 15 
 
 called are: i, Those which anticipate the decision of the case and 
 are calculated to secure in advance the satisfaction of any judg- 
 ment which may be rendered; 2, Those which follow the judg- 
 ment. Or to picture it more clearly to .the eye we may say : 
 
 
 
 
 "" I. Replevin for chat- 
 
 
 
 
 tels. 
 
 
 
 
 2. The Lis Pendens 
 
 
 
 ' I. To secure an an- 
 
 affords ample se- 
 
 
 
 ticipated award of 
 
 curity as to real 
 
 
 
 specific property. ■ 
 
 property, which 
 from its nature 
 cannot be carried 
 away. 
 
 
 r\. Original or Mesne. 
 
 
 I. Attachment by 
 
 •OJ 
 
 
 
 seizure. 
 
 ni 
 
 
 
 2. Attachment by 
 
 S 
 
 
 
 notice, variously 
 
 % 
 
 
 
 denominated Gar- 
 
 (J 
 O 
 
 
 2. To secure an an- 
 
 nishment, Trustee 
 
 & 
 
 
 ticipated award of 
 
 Process, Factoriz- 
 
 n 
 
 
 a sum in money. 
 
 ing, Foreign At 
 
 •3 
 
 
 
 tachment, etc. 
 
 B 
 
 
 
 3. Other Statutory 
 
 
 
 
 Lien Pioceedings, 
 
 
 
 e. g., in favor of 
 
 < 
 
 
 
 laborers, mechan- 
 ics, material men. 
 
 
 2. Final. 
 
 Execution. 
 
 L etc. 
 
 3. VARIOUS WRITS EXPLAINED AND DEFINED. 
 
 Forms of Execution. The term execution embraces all the 
 various processes issued on the judgment with the purpose of ren- 
 dering it effectual. Even attachment, garnishment and replevin 
 are in effect only executions which anticipate the judgments which 
 they are designed to help execute. When the garnishment fol- 
 lows, as it may, instead of preceding the judgment, it is, so far as 
 the judgment creditor is concerned, an execution pure and simple. 
 
 An extended consideration of the various forms of execution 
 would be tedious and unprofitable, but we can well afford to speak 
 of a few of them. 
 
 Fieri Facias is one of the oldest, and to this day one of the 
 most common of all writs of execution. It is said to take its name 
 from the words of the ancient form and from the Statute Westm. 
 2d c. 18, regulating it. However, it seems to have been in use be^ 
 
16 INTRODUCTION. 
 
 fore the statute was enacted. Though the printed statute reads : 
 "quod vice comes fieri faciat de terris et catallis,'' it is believed that 
 neither before nor after the statute nor to the present time in Eng- 
 land have lands been levied upon under this writ. Gilbert on Ex. 
 32 ; Herman on Ex. § 26 ; 2 Reeve's History of Law, ch. X, Fin- 
 lason's Ed. 486, note 2 ; 5 Encyclo. of Laws of England, 129. 
 
 In America, however, U. fa. is the common writ by which the 
 sheriiif is commanded to make the judgment from the chattels of 
 the judgment debtor and in default of them by a sale of his land. 
 
 Coke says the words fieri faciat as used in the statute include 
 levari facias, which was a writ existing before and after the stat- 
 ute. Coke's Institutes Part 2, vol. i, p. 395. It issued out of 
 the lower courts, and by it chattels and the profits of land could be 
 seized and detained but could not be sold or applied and the pos- 
 session of the land itself could not be taken. Id. 394. 
 
 Elegit took its name and origin from the statute above men- 
 tioned by which the creditor was given an election to have a fieri 
 facias or this writ. If he elected to have this writ the judgment 
 stated that he had so elected and a writ of elegit issued accord- 
 ingly, under which the sheriff was commanded to deliver all the 
 chattels of the debtor, except his oxen and beasts of the plow, to 
 the creditor to apply on the judgment and for the balance, the land 
 of the debtor up to one-half of it at a reasonable valuation till 
 from the rents and profits of it the debt should be paid. Herman 
 on Ex. § 31. See also Porter's Lessee v. Cocke; i Peck (Tenn.) 
 30. Under this writ the chattels and the profits of the land were 
 appraised and applied on the judgment. Under a fi. fa. the chat- 
 tels were sold and the proceeds applied. Glascocke v. Morgan, i 
 Kible 556; Bacon's Abr., Execution, c. 2. 
 
 •■> Capias ad Satisfaciendum is a writ commanding the sheriff 
 to arrest and imprison the debtor till the judgment is paid. 
 
 Retorno Habendo is the writ by which the sheriff is com- 
 manded to return replevined chattels to the defendant in replevin 
 in whose favor judgment has been rendered. 
 
 It is scarcely profitable to review the old writs further, as the 
 general name execution embraces all of them, and in each case an 
 
VARIOUS WRITS EXPLAINED. 17 
 
 execution appropriate to the judgment to be executed is awarded 
 under the statutory regulations. 
 
 An Attachment against the person is a warrant for the arrest 
 of a person in contempt proceedings or to compel an appearance. 
 But when an attachment is spoken of in this book an attachment 
 against property is intended unless otherwise indicated. An at- 
 tachment of property was formerly used for the same purpose as 
 an attachment against the person, but now it is used to anticipate 
 and secure satisfaction of the judgment. 
 
 The same may be said of Garnishment, which may be de- 
 scribed as accomplished by serving a notice on a person possessing 
 property belonging to defendant or owing him money, to withhold 
 the' same and appear in court to answer concerning it, and after- 
 ward dispose of it as the court shall direct. 
 
 The Statutory Liens which are given to laborers, material 
 men, mechanics and contractors, are merely peculiar forms of at- 
 tachment and garnishment, and are governed by the same general 
 underlying principles as any attachment or garnishment. Of 
 course, each can be enforced only by following the procedure 
 pointed out in the statute creating and regulating it. 
 
 Replevin is the only process issued by the law courts by 
 means of which the owner of chattels can recover possession of 
 them without waiting to have his right thereto tried in court. Its 
 origin is shrouded in mystery, and probably it is as old as the com- 
 mon law. In the twelfth century it was used principally to re- 
 cover distresses wrongfully taken, though in its earliest form it 
 seems to have been equally well adapted to recover chattels other- 
 wise wrongfully withheld. Now it has generally displaced the 
 action of detinue, by which the same resiilt was accomplished ; but 
 in detinue the possession of the holder was not disturbed till 
 execution issued on the judgment. Replevin issues only as an 
 original writ; but attachment and garnishment may issue when 
 the action is commenced or at any time before judgment ; and gar- 
 nishment may issue after judgment. 
 
 Historic Information on the subject of remedial processes 
 will be found in the case of Jones v. Jones, post, 172, and Sir Wil- 
 liam Harbert's Case, post, 176, and notes to same. 
 
 2 
 
18 INTRODUCTION. 
 
 Bibliographic Note. — 
 
 Replevin was treated by Bracton and Glanvil under the head of distress 
 and all the old writers treated it under the same head, including Gilbert, 
 whose work was published in 1756, and Wilkinson in 1825. The American 
 works on Replevin are Wells in 1879, Cobbey in 1890 and Shinn in 1899. 
 All these are one volume works. 
 
 Executions are treated of by the following authors: Gilbert (Eng.) in 
 1763, Bingham (Eng.) in 1836 (in 13 Law Library), Herman (Am.) in i 
 Vol. 187s, Freeman (Am.) in I Vol. in 1876, and the 3d ed. in 3 Vols, is 
 now in press (1900). 
 
 Mechanics' Liens are specially treated of by Kneeland, 1882 ; Phillips, 
 1893 ; and Boisot in 1897. See also on Liens in general, Jones and Overton. 
 
 Attachment of property is treated of by the following American au- 
 thors: Sergeant in 1811, Drake (ist ed. in 1854, 7th ed. in 1891), Waples 
 (ist ed. i88s, 2d ed. in 1895), Wade in 1886, Shinn in 1896. 
 
 Garnishment is treated of generally by all the above authors on Execu- 
 tion and Attachment and specially by Locke on Foreign Attachment, (spe- 
 cial custom of London in 1854) and by myself in a book published in 1896- 
 Besides these all the abridgements of the law and other publications calcu- 
 lated to cover the whole field of the law have articles on each of these 
 topics, and frequently these are of considerable merit. 
 
II. LEGISLATIVE CONTROL OF REMEDIAL PROC^ 
 
 ESSES. 
 
 Power to Eestbict the Use of the Peochssbs, 
 
 A. As to Esuiating Contracts and Judgments, 
 
 B. As to Future Contracts and Judgments, 
 
 PowEE TO Extend the Use and Provide New Processes, 
 
 A. As to Bxisting Contracts and Judgments, 
 
 B. As to Future Contracts <md Judgments, 
 Power to Change the Form^ Procedure, etc.. 
 
 EDWARDS V. KEARZEY. ; 
 
 96 United States S9S- (1877) 
 
 Constitutional Law — Obligation, Contract, and Impairing Defined — Ex- 
 emption Laws — Stay Laws — Limitation of Actions — 
 Imprisonment for Debt. 
 
 Error to the Supreme Court of the State of North Carolina. 
 
 This action was commenced by Leonidas C. Edwards, March 
 31, 1869, in the Superior Court of Granville County, North Caro- 
 lina, against Archibald Kearzey, to recover the possession of cer- 
 tain lands in that county. They were levied upon and sold by the 
 sheriff, by virtue of executions sued out upon judgments rendered 
 against Kearzey, on contracts which matured before April 24, 
 1868, when the Constitution of North Carolina took effect, the 
 tenth article of which exempts from sale under execution or other 
 final process, issued for the collection of any debt, the personal 
 property of any resident of the" State, and "every homestead, and 
 the dwelling and buildings used therewith, not exceeding in value 
 $1,000, to be selected by the owner thereof." Prior to that date, 
 under statutes since repealed, certain specified articles of small 
 value, and such other property as the freeholders appointed for 
 that purpose might deem necessary for the comfort and support 
 of the debtor's family, not exceeding in value $50 at cash valua- 
 tion, and fifty acres of land in the county and two acres in the town 
 of not greater value than $500, where exempt from execution. 
 The lands in question were owned and occupied by Kearzey as a 
 
20 LEGISLATIVE CONTROL. 
 
 homestead, and as such were set off to him pursuant to the mode 
 prescribed by the legislation for carrying the constitutional pro- 
 vision into effect. He had no other lands, and they did not exceed 
 $1,000 in value. 
 
 Edwards was the purchaser at the sheriff's sale of said lands, 
 and received a deed therefor. 
 
 The court found for Kearzey, upon the ground that so much 
 of said art. lo as exempts from sale, under execution or other 
 final process obtained' on any debt, land of the debtor of the value 
 of $1,000, and the statutes enacted in pursuance thereof, embrace 
 within their operation executions for debts which were contracted 
 before the adoption of said Constitution ; and that said article and 
 said statutes, when so interpreted and enforced, are not repugnant 
 to art. I, sect. lo, of the Constitution of the United States, which 
 ordains that no State shall pass any law impairing the obligation 
 of contracts. 
 
 Judgment having been rendered upon the finding, it was, on 
 appeal, affirmed by the Supreme Court of the State. Edwards 
 then sued out this writ of error. 
 
 Joseph B. Batchelor and Edward Graham Haywood for the 
 plaintiff in error. 
 
 A. W. Toiirgee, contra. 
 
 Swayne, J. * * * The only Federal question presented by 
 the record is, whether the exemption was valid as regards con- 
 tracts made before the adoption of the Constitution of i868. 
 
 The counsel for the plaintiff in error insists upon the negative 
 of this proposition. The counsel upon the other side, frankly 
 conceding several minor points, maintains the affirmative view. 
 Our remarks will be confined to this subject. 
 
 The Constitution of the United States declares that "no State 
 shall pass any . . . law impairing the obligation of contracts." 
 
 A contract is the agreement of minds, upon a sufficient con- 
 sideration, {6oo] that something specified shall be done, or shall 
 not be done. 
 
 The lexical definition of "impair" is "to make worse ; to dim- 
 inish in quantity, value, excellence, or strength; to lessen in 
 power ; to weaken ; to enfeeble ; to deteriorate." Webster's Diet. 
 
LEGISLATIVE CONTROL. 21 
 
 "Obligation" is defined to be "the act of obliging or binding ; 
 that which obligates ; the binding power of a vow, promise, oath, 
 or contract," &c. Id. 
 
 "The word is derived from the Latin word obligato, tying 
 up ; and that from the verb obligo, to bind or tie up ; to engage by 
 the ties of a promise or oath, or form of law ; and obligo is com- 
 pounded of the verb ligo, to tie or bind fast, and the preposition 
 ob, which is prefixed to increase its meaning." Blair v. Williams 
 and Lapsley v. Brashears, 4 Litt. (Ky.) 65. 
 
 The obligation of a contract includes every thing within its 
 obligatory scope. Among these elements nothing is more impor- 
 tant than the means of enforcement. This is the breath of its vital 
 existence. Without it, the contract, as such, in the view of the 
 law, ceases to be, and falls into the class of those "imperfect obli- 
 gations," as they are termed, which depend for their fulfilment 
 upon the will and conscience of those upon whom they rest. The 
 ideas of right and remedy are inseparable. "Want of right and 
 want of remedy are the same thing." i Bac .Abr., tit. Actions in 
 General, letter B. 
 
 In Von Hoffman v. City of Quincy (4 Wall. 535), it was 
 said : "A statute of frauds embracing pre-existing parol contracts 
 not before required to be in writing would affect its validity. A 
 statute declaring that the word 'ton' should, in prior as well as 
 subsequent contracts, be held to mean half or double the weight 
 before prescribed, would affect its construction. A statute pro- 
 viding that a previous contract of indebtment may be extinguished 
 by a process of bankruptcy would involve its discharge; and a 
 statute forbidding the sale of any of the debtor's property under a 
 judgment upon such a contract would relate to the remedy." 
 
 It cannot be doubted, either upon principle or authority, that 
 each of such laws would violate the obligation of the contract, 
 [601] and the last not less than the first. These propositions seem 
 to us too clear to require discussion. It is also the settled doctrine 
 of this court, that the laws which subsist at the time and place of 
 making a contract enter into and form a part of it, as if they were 
 expressly referred to or incorporated in its terms. This rule em- 
 braces alike those which affect its validity, construction, discharge, 
 
22 LEGISLATIVE CONTROL. 
 
 and enforcement. Von Hoffman v. City of Quincy, supra; Mc- 
 Cracken v. Hayward, 2 How. 608. 
 
 In Green v. Biddle (8 Wheat, i), this court said, touching 
 the point here under consideration : "It is no answer, that the acts 
 of Kentucky now in question are regulations of the remedy, and 
 not of the right to the lands. If these acts so change the nature 
 and extent of existing remedies as materially to impair the rights 
 and interests of the owner, they are just as much a violation of 
 the compact as if they overturned his rights and interests." 
 
 "One of the tests that a contract has been impaired is, that its 
 value has by legislation been diminished. It is not by the Con- 
 stitution to be impaired at all. This is not a question of degree 
 or manner or cause, but of encroaching in any respect on its obli- 
 gation, — dispensing with any part of its force." Planters' Bank 
 V. Sharp et al., 6 How. 301. 
 
 It is to be understood that the encroachment thus denounced 
 must be material. If it be not material, it will be regarded as of 
 no account. 
 
 These rules are axioms in the jurisprudence of this court. 
 We think they rest upon a solid foundation. Do they not cover 
 this case; and are they not decisive of the question before us? 
 
 We will, however, further examine the subject. 
 
 It is the established law of North Carolina that stay laws are 
 void, because they are in conflict with the national Constitution. 
 Jacobs V. Small-wood, 63 N. C. 112; Jones v. Crittenden, i Law 
 Repos. (N. C.) 385; Barnes v. Barnes et al, 8 Jones L. (N. C.) 
 366. This ruling is clearly correct. Such laws change a term of 
 the contract by postponing the time of payment. This impairs its 
 obligation, by making it less valuable to the creditor. But it does 
 this solely by operating on the remedy. The contract is not other- 
 wise touched by the offending law. Let us suppose a case. A 
 party recovers two judgments, [602] — one against A., the other 
 against B., — each for the sum of $1,500, upon a promissory note. 
 Each debtor has property worth the amount of the judgment, and 
 no more. The legislature thereafter passes a law declaring that 
 all past and future judgments shall be collected "in four equal 
 annual installments." At the same time, another law is passed, 
 
LEGISLATIVE CONTROL. 23 
 
 which exempts from execution the debtor's property to the amount 
 of $1,500. The court holds the former law void and the latter 
 valid. Is not such a result a legal solecism? Can the two judg- 
 ments be reconciled? One law postpones the remedy, the other 
 destroys it ; except in the contingency fhat the debtor shall acquire 
 more property, — a thing that may not occur, and that cannot occur 
 if he die before the acquisition is made. Both laws involve the 
 same principle and rest on the same basis. They must stand or 
 fall together. The concession that the former is invalid cuts away 
 the foundation from under the latter. If a State may stay the 
 remedy for one fixed period, however short, it may for another, 
 however long. And if it may exempt property to the amount here 
 in question, it may do so to any amount. This, as regards the 
 mode of impairment we are considering, would annul the inhibi- 
 tion of the Constitution, and set at naught the salutary restriction 
 it was intended to impose. * * * 
 
 Imprisonment for debt is a relic of ancient barbarism. Coop- 
 er's Justinian, 658 ; 12 Tables, Tab. 3. It has descended with the 
 stream of time. It is a punishment rather than a remedy. It is 
 right for fraud, but wrong for misfortune. It breaks the spirit of 
 the honest debtor, destroys his credit, which is a form of capital, 
 and dooms him, while it lasts, to helpless idleness. Where there 
 is no fraud, it is the opposite of a remedy. Every right-minded 
 man must rejoice when such a blot is removed from the statute- 
 book. 
 
 But upon the power of a State, even in this class of cases, 
 [60^^] see the strong dissenting opinion of Mr. Justice Washing- 
 ton, in Mason v. Haile, 12 Wheat. 370. 
 
 Statutes of limitation are statutes of repose. They are neces- 
 sary to the welfare of society. The lapse of time constantly car- 
 ries with it the means of proof. The public as well as individuals 
 are intetested in the principle upon which they proceed. They do 
 not impair the remedy, but only require its application within the 
 time specified. If the period limited be unreasonably short, and 
 designed to defeat the remedy upon pre-existing contracts, which 
 was part of their obligation, we should pronounce the statute void. 
 Otherwise, we should abdicate the performance of one of our most 
 important duties. * * * [do/] * * * 
 
24 LEGISLATIVE CONTROL. 
 
 We think the views we have expressed carry out the intent 
 of contracts and the intent of the Constitution. The obligation 
 of the former is placed under the safeguard of the latter. No 
 State can invade it ; and Congress is incompetent- to authorize such 
 invasion. Its position is impregnable, and will be so while the or- 
 ganic law of the nation remains as it is. The trust touching the 
 subject with which this court is charged is one of magnitude and 
 delicacy. We must always be careful to see that there is neither 
 nonfeasance or misfeasance on our part. 
 
 The importance of the point involved in this controversy in- 
 duces us to restate succinctly the conclusions at which we have 
 arrived, and which will be the ground of our judgment. 
 
 The remedy subsisting in a State when and where a contract 
 is made and is to be performed is a part of its obligation, and any 
 subsequent law of the State which so affects that remedy as sub- 
 stantially to impair and lessen the value of the contract is forbid- 
 den by the Constitution, and is, therefore, void. 
 
 The judgment of the Supreme Court of North Carolina will 
 be reversed, and the cause will be remanded with directions to 
 proceed in conformity to this opinion ; and it is 
 
 So ordered. 
 
 Clifford and Hunt, J J., concurred in the judgment. Harlan, 
 J., dissented. 
 
 The doctrine announced in this case is now well established; and 
 expressions to the contrary, many of which will be found in the earlier 
 state reports, are of small practical importance, since this Federal 
 question is sufficient to take the case from the supreme court of any 
 state to the supreme court of the United States, where the decision will 
 be reversed if a law impairing the remedy has been sustained as to pre- 
 existing contracts. 
 
 An Early View. In Sturges v. Crowninshield, 4 Wheaton, at page 
 200, Marshall, C.J., said: "The distinction between the obligation of a 
 contract and the remedy given by the legislature to enforce that obli- 
 gation has been taken at the bar, and exists in the nature of things. 
 Without impairing the obligation of the contract, the remedy may cer- 
 tainly be modified as the wisdom of the nation shall direct. Confine- 
 ment of the debtor may be a punishment for not performing his con- 
 tract, or may be allowed as a means of inducing him to perform it. But 
 the state may refuse to inflict this punishment, or may withhold this 
 means and leave the contract in full force. Imprisonment is no part 
 
LEGISLATIVE CONTROL. 25 
 
 of the contract and simply to release the prisoner does not impair its- 
 obligation." • 
 
 Repealing Remedy Given After Contract was Made — Effect of 
 Judgment. — In 1867 A furnished labor and material to the city of Mem- 
 phis, Tenn., under a paving contract. In 1873 the State Legislature en- 
 acted that said city might levy "a tax m addition to all taxes allowed 
 by law," sufficient in amount to pay A for said labor and material. 
 March 16, 1875, A obtained a decree against said city for $292,133 for 
 said labor and material. March 22, on return of execution unsatisfied, 
 the court awarded a mandamus to compel the city to exercise the 
 power conferred by the act. The next day, March 23, said act was 
 repealed. Memphis assigns error in that the court below awarded a 
 peremptory madamus after said act was repealed. 
 
 The Court by Strong, J. * * * "This statute, it is true, was not 
 in existence when the plaintiff's contract with the city was made, but it 
 is confessedly available for him, unless it was repealed before he ac- 
 quired any rights under it. Plainly it was enacted to meet his case, 
 and had there been no repeal, the question now raised, would not be 
 before us. It is claimed, however, that it was repealed before the cir- 
 cuit court awarded the mandamus, and what was the effect of that 
 legislative act upon the power of the court in this case, 
 becomes therefore a very important question. It is an acknowledged 
 principle that a creditor by contract has a vested right to the remedies 
 for the recovery of the debt, which existed at law when the contract 
 was made, and that the legislature of a state cannot take them away 
 without impairing the obligation of the contract, though it may modify 
 them, and even substitute others, if a sufficient remedy be left, or an- 
 other sufficient one be provided. The law is in effect a part of the con- 
 tract. But it is not so clearthatwhen a new remedy is authorized after a 
 contract has been made, that remedy may not be wholly taken away by 
 the legislature, before any vested rights have been acquired under it. 
 In such a case the parties did not contract with reference to it, and it 
 did not enter into their agreement. It had nothing to do with the obli- 
 gations they assumed. It is, however, no less true that vested rights, 
 may be acquired by the creditor under it, and by virtue of it; and when 
 such rights have been acquired, they are beyond the reach of the legis- 
 lature, and the repeal of the law will not affect [295] them. As to them,, 
 the law continues in force, notwithstanding its repeal. 
 
 In this case the relator recovered his judgment against the city on 
 the 16th of March, 1865. Into that judgment his contract was merged, 
 and it no longer had any legal existence. If, as asserted by Blackstone, 
 the judgment was itself a contract,the remedies for its enforcement, 
 existing at the time when it was recovered, could not be taken away 
 either by direct legislation, or indirectly, by repealing the law which 
 gave those remedies. And if the judgment may not be considered a 
 contract of record, still the vested rights it gave the relator, what- 
 ever they were, are equally secure against legislative invasion. * * * 
 [297] * * * We do not deny that it is competent for a legislature to 
 
'26 LEGISLATIVE CONTROL. 
 
 Tepeal an act which when it was passed was a mere gratuity, if 
 -while it was In existence no vested rights have been acquired under it 
 or in virtue of It. But such, we think, is not this case. Indeed, there 
 are very strong reasons for holding that the act of March 18, 1873, 
 never was a gratuity. * • * [298] But if we are in error in this, it is 
 still enough that by his judgment and his writ of mandamus he ac- 
 •qulred a vested right to have the tax collected which the writ ordered." 
 Judgment affirmed. Memphis v. United States [1877] 97 U. S. 293. 
 
 HEINEMAN v. SCHLOSS. 
 83 Michigan 153, 47 N. W. 107. (1890) 
 
 Changing Form of Remedy Without Affecting Substance — Retrospective 
 
 Laws. 
 
 Garnishment by Emil S. Heineman et al., against Seligman 
 Schloss et al., as garnishees of Rachel Solomon, judgment de- 
 fendant. From judgment on verdict directed in discharge of the 
 garnishees plaintiffs bring error. Reversed. 
 
 Plaintiffs sought to charge the garnishees for the proceeds of 
 a stock of goods mortgaged to the garnishees in 1888, and, as 
 plaintiffs allege, to defraud the principal defendant's creditors. 
 
 This court held in Folkerts v. Standish, 55 Mich. 463, that a 
 garnishee was not liable for the proceeds of property fraudulently 
 received and converted into money, but afterward an act was 
 passed declaring the garnishee chargeable for such proceeds. 
 Acts of 1889 No. 244. Other facts appear in the opinion of the 
 ■court. 
 
 Dickinson, Thurber & Stevenson for appellants. 
 
 Julian G. Dickinson for garnishees. 
 
 The Court by Cahill, J. * * * It is insisted on behalf of the 
 defendants that to apply the statute of 1889 to this action would 
 be to give it retroactive effect ; that there is nothing upon the face 
 of the act indicating that it was intended to have such effect ; and 
 that the rule is that all statutes are prospective in their operation, 
 €xcept where a contrary intention is clearly evidenced by the stat- 
 ute itself. The rule contended for by the defendants' counsel is 
 correct, but it does not apply to this case. That rule could 
 have been appealed to in defense of the original garnishee pro- 
 ceeding that was commenced February 7, 1889, because that suit 
 
LEGISLATIVE CONTROL. 27 
 
 was commenced before the act of 1889 had taken efiEect. But the 
 garnishee law is purely a remedial statute. It gives no rights and 
 creates no liabilities. Everything that can be accomplished by 
 means of it could have been accomplished by other means if the 
 garnishee law had never been passed. Counsel for defendants 
 says : 
 
 "Under the mortgage, defendants' sale of the property was 
 valid under the law as far as plaintiffs are concerned. Could the 
 Legislature, by the amendatory enactment, give the plaintiffs a 
 claim upon such property or its value, and make defendants liable 
 therefor?" 
 
 The trouble with this inquiry is that it does not correctly state 
 the situation of the defendants with reference to this property. If 
 the mortgage under which they took the property was fraudulent, 
 the mortgagees obtained no rights under it, and could not lawfully 
 exercise any rights, as mortgagees, over the property under it. 
 The funds received by them on a sale of th6 property remained in 
 their hands as equitable assets for the benefit of the creditors of 
 the mortgagor. Under the statute, as it existed prior to the 
 amendment of 1889, this fund could not be reached by garnish- 
 ment, but it was liable to be reached [158] in equity. The effect 
 of the amendment is not to enlarge the liability of the defendants, 
 but to render them liable at law instead of in equity, as formerly. 
 Treating the garnishee statute, then, as one affecting the remedy 
 merely, it is not giving the statute of 1889 retroactive effect to ap- 
 ply it to suits commenced after the act took effect, simply because 
 the transaction upon which the suit is based took place before that 
 time. 
 
 In determining whether a statute is retroactive in its effect, 
 regard must be paid to the purpose of it. If the statute is one that 
 confers new rights or creates new liabilities, then to apply it to 
 past transactions, so that new right's and liabilities spring up where 
 none existed when such transactions occurred, is to give it retro- 
 active effect ; but when the statute is one giving a new or different 
 remedy for a pre-existing right or liability, then it is not retro- 
 active, as applied to suits commenced after the act has taken effect. 
 because past transactions are involved in such suit. In the latter 
 
28 LEGISLATIVE CONTROL. 
 
 case the statute does not relate to or attempt to characterize trans- 
 actions, but gives a certain remedy therefor, and the remedy may 
 be pursued at once after the act takes effect. 
 
 The judgment is reversed, and a new trial granted. 
 
 To same effect see Fisher v. Hervey, 6 Colo.. 16, and on the gen- 
 eral subject of this chapter see 10 Century Digest, title. Constitutional 
 Law, §§ 174-535, and cases there cited. 
 
III. ON WHAT JUDGMENTS AND IN WHAT ACTIONS 
 THE PROCESSES ARE AVAILABLE. 
 
 1. Executions, 29. 
 
 2. Attachment and Gabnishmbnt, 32. 
 
 A. Caution, 32. 
 
 B. IrC What Forms of Action Attachment (md Garnishment are Avail- 
 
 able, 32. 
 a. Actions Ex Contractu or Ex Delicto, 32. 
 6. Special Statutory Actions, 34. 
 
 C. On Demands of What Character Available, 37. 
 a. Ex Contractu or Ex Delicto, 37. 
 
 6. Liquidated or Unliquidated, 39. 
 c. Mixed Demands, 42. 
 
 D. The Statutory Exigency or Ground for Attachment, 46. 
 
 a. Necessity of, Wlio May Object and How, 46. 
 
 b. ■ As to All of the Defendants or Partial and Several, 47. 
 
 c. Existing as to the Whole Demand or Only a Part, 50. 
 
 d. Any Legal Ground or Only the Alleged Ground, 52. 
 
 e. Precision Required in the Allegations and Proof, 52. 
 
 f. Contracted or Payable in the State, 54. 
 
 g. Fraudulently Incurred, 57. 
 
 h. Disposition of Property to Defraud Creditors, 59. 
 i. Debtor Absconding or Non-Eesident, 59. 
 
 1. EXECUTIONS. 
 
 ROBERTS V. CONNELLEE. 
 71 Texas ii, 8 S. W. 626. (i: 
 
 Right to Execution When Not Expressly Awarded — Otiier Special Or- 
 der — Form of Justice Court Records. 
 
 Action by John C. Roberts against C. U. Connellee to quiet 
 title to land. Judgment for defendant. Plaintiff appeals. Re- 
 rersed. 
 
 Plaintiff claims by deed from the heirs of M. J. Hall. De- 
 fendant claims under a sheriff's deed given at a sale on execution, 
 on a judgment rendered by a justice of the peace against the ex- 
 ecutor of said Hall. 
 
 /. M. Moore and James C. Walker, for appellant. 
 
 No brief for appellee. 
 
 The Court by Collard, J. * * * Plaintiff insists that no exe- 
 cution could issue upon the judgment rendered by the justice of 
 the peace, because it does not direct execution to issue, but, on the 
 
30 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 contrary, directs that the claim be paid in due course of adminis- 
 tration. The judgment was rendered July 12, 1875 ; the alias 
 execution was issued November 14, 1879. We do not understand 
 that a justice of the peace must award execution as a part of the 
 judgment in order to authorize its issuance under the laws in force 
 at the time the judgment was rendered. The execution was is- 
 sued as a consequence of the judgment, as a ministerial act, to 
 enforce the judgment. There was no provision of the law of 
 1870, in force at the time the judgment was rendered, requiring 
 the award of execution to be made in the judgment. The act of 
 1870, upon the subject of final process upon judgments in general, 
 is: "And every justice shall, from time to time, when required by 
 a party having a judgment in his court, issue such executions or' 
 other writs as may be necessary to enforce such judgments until 
 the same shall have been satisfied." Pas. Dig., § 6340. This 
 plainly indicates that the writ follows the judgment already ren- 
 dered, as a matter of course. Even in a suit for specific articles, 
 if the plaintiff recover, the statute directs that "judgment shall be 
 rendered for the specific articles if to be had, but if' not, then for 
 their value ;" here the judgment ends, and to enforce it the statute 
 proceeds: "and the justice shall issue thereon his writ, directed 
 to some lawful officer, commanding him to put the plaintiff in pos- 
 session of the article or articles so recovered, if to be found, but 
 if not, then to proceed to make the value of such article or articles, 
 with legal interest from the date of the judgment and costs, as 
 under execution." Pas. Dig. § 6340. 
 
 It is certainly the rule that an execution must be authorized 
 by and' must conform to the judgment; that there must be a judg- 
 ment for costs, for instance, to authorize the clerk to issue execu- 
 tion for them. Crisivell v. Ragsdale, 18 Texas, 445. But there 
 was no law in this State at the date of this judgment requiring the 
 court to award execution as a judicial act in a simple [i5] judg- 
 ment for debt. Our statutes simply directed that the clerks and 
 justices of the peace shall, after judgment, after a time stipulated, 
 or upon the rising of the court issue execution. If the contrary 
 were true, no judgment would be final without an order that exe- 
 cution issue. It has been held in this State that an entry by the 
 justice of the peace on his docket of the amount sued for, and that 
 
EXECUTIONS. 31 
 
 "the defendant came forward and acknowledged judgment ;" giv- 
 ing the date, was as a final judgment. Wahrenberger v. Horan, 
 i8 Texas, 59. The docket entries of a justice of the peace,, 
 styling the suit, amount of debt, and the following: "April 28. 
 Offset, proved and allowed for $20.50. Decree for balance, $70.50" 
 were held sufficient as a judgment. Hoiverton v. Luckie, 18 Id.,. 
 236. An entry of a verdict on a docket of a justice of the peace 
 was treated as sufficient entry of judgement. Davis v. Pinckney,. 
 20 Texas, 341. 
 
 In the case of Clay v. Clay, 7 Texas, 251, the justice entered 
 upon his docket opposite the verdict : "Judgment rendered April 
 17, 1849." This was held sufficient as a judgment in a justice court. 
 The Supreme Court, in commenting upon it, say : "The entry of 
 judgment is informal and defective, and does not pursue the direc- 
 tions of the statute; but great liberality and indulgence are ex- 
 tended to the proceedings of justices of the peace who are not 
 supposed to be skilled in the forms of judicial proceedings ob- 
 served in courts of record. If their proceedings are intelligible 
 and attain the ends of substantial justice they are generally sus- 
 tained. See Freeman on Judgments, § 55 and note. We con- 
 clude that the judgement of the justice of the peace in the case 
 before us was a final judgment, notwithstanding it failed to award 
 execution, that an execution would follow as a consequence of the 
 judgment and would run against the property of the estate in the 
 hands of the executor Hall. The fact that the judgment required 
 the claim should be paid in due course of administration is imma- 
 terial. There was no administration in the probate court, and the 
 judgment could not be so collected. Such being the case, it was 
 collectible [19^ by execution as allowed by law in case where the 
 executor controls the estate and executes the will independently of 
 the court. The Revised Statutes of this State, which took effect 
 September i, 1879, require that a judgment of justice of the peace 
 shall direct the issuance of such process as may be necessary to 
 carry the judgment into execution." Rev. Stats., 1613. The 
 judgment in the case before us is not affected by the recent statute, 
 notwithstanding it was enacted before the execution was issued. 
 The statute quoted is directory only of judgments to be thereafter 
 rendered. 
 
32 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 Other errors assigned need not be noticed further, as they 
 ■are incidentally disposed of in our conclusions above stated. On 
 account of errors of the court in admitting illegal evidence we con- 
 clude the cause should be reversed and remanded for a new trial. 
 
 Reversed and remanded. 
 "It would be idle to authorize the enforcement of a contract and 
 the rendition of a judgment if such judgment could not he made effect- 
 'ive when given." Dillon v. Burnham, post, p. 87. To same effect see 
 United States v. Drennen, post, p. 94. 
 
 2. ATTACHMENT AND GARNISHMENT. 
 
 A. Caution. 
 
 There is one prime difference between an attachment by 
 -seizure, and an attachment by notice, commonly called gar- 
 nishment. Attachment by seizure deprives the defendant of 
 the use of his property, often interrupting, suspending or even de- 
 stroying his business. Whereas garnishment does not disturb the 
 possession and is much less likely to operate oppressively. For 
 this reason garnishment statutes seldom require a bond from the 
 plaintiff for the protection of the defendant, or an order fixing the 
 amount which may be attached, as is usual in the attachment stat- 
 utes. This distinction should be borne in mind in reading the fol- 
 lowing cases in this chapter. Those decisions which are in- 
 fluenced by considerations touching the amount to be named in 
 the penalty of the bond or the order for attachment do not apply 
 to garnishment. The others do. 
 
 B. In What Forms of Action Attacliment and Garnishment are 
 
 Available. 
 
 a. ACTIONS EX CONTRACTU OR EX DELICTO. 
 
 FERRIS V. FERRIS. 
 25 Vermont loo. (1853) 
 
 Form of Action — Ex Contractu or Ex Delicto — Garnishment in Tres- 
 pass — Statutory Conditions and Proceedure. 
 
 Trespass by Daniel W. Ferris against George W. Ferris in 
 which W. H. Mosher was summoned as trustee. ■ Defendant 
 pleaded in abatement that the writ was issued as an attachment in 
 an action of trespass. Plaintiff demurred. Judgment for de- 
 fendant, and paintiff appealed. Affirmed. 
 
 H. R. Beardsley for plaintiff. 
 
 G. Harrington for defendant. 
 
ATTACHMENT AND GARNISHMENT. 33 
 
 The Court by Ishani, J. The present trustee act, Comp. Stat. 
 256, provides, that upon all contracts, express or implied, made 
 since the first day of January, 1839, and upon all contracts where 
 the principal defendant [102] has absconded from, or is resident 
 out of this State, or is concealed within it, a suit may be com- 
 menced thereon by a trustee process. This mode of relief is un- 
 known at common law. The remedy itself, the form of the proc- 
 ess, and mode of procedure, are given and prescribed by statute, 
 and when adopted, its provisions ar3 to be strictly pursued, and 
 unless the case is expressly provided for by the act, it cannot be 
 sustained. These principles are illustrated and confirmed by the 
 case of Park et al. v. Trustees of Williams, 14 Vt. 213. 
 
 It is evident, therefore, that this suit cannot be sustained as a 
 trustee process, for the cause of action against the principal 
 defendant does not arise ex contractu. It is only in cases of 
 that character, that the process is given by statute. * * * {lo^^ 
 * * * The result is, that the judgment of the county court, dis- 
 missing the suit, must be 
 
 Affirmed. 
 
 Various Names for Garnishment. — In Massachusetts, Maine, New 
 Hampshire and Vermont garnishment is known as trustee process, 
 and the garnishee is called trustee. In Connecticut and Khode Island, 
 and to some extent in other states, it is called foreign attachment or 
 attachment, and formerly in Connecticut it was called factorizing; 
 but in all these states the persons summoned as stakeholders are 
 called garnishees. 
 
 STROCK V. LITTLE. 
 4S Pennsylvania St. 416. (1863) 
 
 Same — Garnishment in Account Render. 
 
 Foreign attachment in account render by Peter J. Little 
 against Jacob Strock. From judgment in favor of plaintiff 
 defendant brings error. Affirmed. 
 
 i*. L. Russell, for appellant. 
 
 John Cessna, for appellee. 
 
 The. Court by Woodward, J. The only question upon this 
 record is whether foreign attachment will lie in account render. 
 And why will it not? Under the custom of London, all attach- 
 
34 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 merits are grounded upon actions of debt or detinue; but under 
 our statutes, which, being- remedial, are to be liberally construed, 
 foreign attachments may issue in all actions sounding in contract 
 where the plaintiff can swear to the amount claimed, or the court, 
 upon a rule to show cause of action, can get at the sum in contro- 
 versy with [419] sufficient accuracy to fix the amount of bail 
 which the defendant is to give to dissolve the attachments. This, 
 I take it, is the rule which is deducible from our Acts of Assembly 
 and from the ruling in Fisher v. Consequa, reported in Sergeant 
 on Attachm. 44 s. c, 2 Wash. (U. S. C. C.) 392, Fed Cas. No. 
 4816. 
 
 It will not lie in actions sounding in tort, for' it was never 
 designed as a remedy in such cases. Porter v. Hildebrand, 14 Pa. 
 St. (2 Harris) 131. Nor in actions ex contractu for unliqui- 
 dated damages, for in such a case the court will have no standard 
 by which to fix the amount of defendant's bail ; but wherever, in 
 actions ex contractu, the cause of action can be shown with such 
 approximate precision as will enable the court to prescribe the 
 amount of bail to the defendant, the writ may go. * * * A very 
 cumbersome and ill-favored action it is, to be sure, but nevertheless 
 it arises strictly ex contractu, is for a debt due, and although it 
 may result as assumpsit may, in a balance in favor of the defend- 
 ant, yet it is a case in which the cause of action may be shown and 
 the bail of defendant may be fixed. 
 
 Therefore, we hold it may be commenced by foreign attach- 
 ment. 
 
 The judgment is affirmed. 
 
 Reed I., dissented. 
 
 b. SPECIAL STATUTORY ACTIONS. 
 
 ILLINOIS CENTRAL RAILROAD .CO. v. WEAVER. 
 ; S4 Illinois 319. (1870) 
 
 Enforcing Garnishment Judgment by Garnishment. 
 
 Garnishment by P. A. Ross against the Illinois Central R. R. 
 Co. as debtor of Weaver to enforce a judgment recovered against 
 Weaver as garnishee in an action by said Ross against one Hart- 
 man. From a judgment for plaintiff the I. C. R. Co. appeals. 
 Reversed. 
 
ATTACHMENT AND GARNISHMENT. 35 
 
 Geo. W. Wall, for appellant. 
 
 Casey & Divight, for plaintiff. 
 
 The Court by Breese, /. * * * The only question presented is, 
 does a fair construction of the law of garnishment authorize pro- 
 cess of garnishment [j^i] against the debtor of the garnishee, 
 against whom an execution has been returned nulla bona. R. S. 
 Ch. 8, p. 58. * * * 
 
 It is contended by appellee, that, by the thirty-eighth section 
 of chapter 57, title,"Judgments and Executions," R. S. 307, process 
 of garnishment is allowed on all judgments rendered by a justice 
 of the peace, and, therefore, judgment having been rendered 
 against Weaver as the debtor of Hartman, who was the debtor of 
 Ross, the plaintiff in the action, the same process could be awarded 
 against appellant, who was the debtor of Weaver. * * * [j^^] 
 
 The proceeding is statutory and cannot be extended beyond 
 the plain provisions of the statute, and that evidently confines the 
 proceedings to the debtor of the debtor. An insuperable objection 
 to it, on principle, also exists, and it is this : there is no privity 
 whatever between the judgment debtor, Hartman, and appellants. 
 The principle of garnishment seems to depend on this, and it 
 existed between Hartman, the debtor, and Weaver. To that 
 extent Ross, the plaintiff, could rightfully go, but no further. 
 While Hartman could sue Weaver, he could not have an action 
 against Weaver's debtors, the appellants in this case, he having no 
 interest in the subject, and there being no privity between them. 
 Harrell v. Whitmore, 19 Ala. 135. We think a fair construction, 
 of the statute can go no further than to allow this process to reach | 
 an indebtedness to the judgment debtor, and if the garnishee 
 appears and denies all indebtedness, and none is established against 
 him, the proceeding is at an end. The proceeding can not be 
 extended beyond the mere matter of reaching the property or 
 effects of the defendant. The debt due by appellant to Weaver, 
 was, clearly, not of that character. Even a court of chancery, on 
 a bill filed for such purpose, would have no authority so to apply 
 the debt due to Weaver. Wolf v. Tap pan & Co. 5 Dana (Ky.), 
 361 ; Jones v. Huntington, 9 Mo. 247; Drake on Attachments, sees. 
 454, 459- 
 
36 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 In our view of the statute and of the practice under it for 
 rnany years, we are of opinion that the plaintiff in an action, resort- 
 ing to garnishment, after having obtained a judgment against his 
 debtor, can not extend it beyond "the debtor of his debtor. 
 
 The circuit court having entertained different views, the 
 
 judgment of that court is reversed, with directions to dismiss the 
 
 proceeding as against appellants. 
 
 Judgment reversed. 
 
 In Illinois and- a few other states garnisliment proceedings are 
 conducted in the name of the judgment debtor against his debtor and 
 judgment entered accordingly, but in most states the proceedings are , 
 in the name of the garnishing creditor against the garnishee. 
 
 I doubt whether this case would now be followed in many states. 
 The remedy is now treated with greater liberality. The contrary was 
 held in Sperling v. Calfee, 7 Mont. 514, 19 Pac. 204. See also Esler v. 
 Kent Circuit Judge, post, p. 79. 
 
 Wolf V. Tappan & Co., above, was originally a bill in chancery 
 seeking to obtain 'from residents of the state what they owed complain- 
 ant's non-resident debtor. Before the decree had been rendered a sup- 
 plemental bill was filed, Suggesting that the defendants were becoming 
 insolvent, and praying that certain of their debtors, who were made 
 parties to the supplemental bill, be restrained from paying defendants 
 what was due them. The trial court granted the restraining order, but 
 on appeal the decree was reversed, the court saying: "The mere exist- 
 ance of a general pecuniary demand creates no lien, general or specific, 
 either in law or equity, and therefore furnishes no ground, before de- 
 cree, for the court of equity to act in rem, or in any other man,ner than 
 upon the person of the debtor. * * * The supplemental bill * * * 
 makes no charge of fraud ; and without admitting that the court could 
 have interposed, as it did, on the ground of preventing an intended 
 fraud, the fact that there was no allegation of such a fraud is a 
 sufficient answer." 
 
 Jones V. Huntington, was decided on facts similar to those in Wolf 
 V. Tappan & Co., except that the relief was asked in the original bill, 
 against Hamilton as judgment debtor, agains"t Myers as his debtor, and 
 to restrain Huntington from paying to Myers because Myers was a 
 non-resident. The bill was dismissed, the court saying: "The case m 
 the bill would go a bow-shot furtherthan any yet has gone." 
 
ATTACHMENT. 37 
 
 C. On Demands of What Character Available. 
 
 a. EX CONTRACTU OR EX DELICTO. 
 
 ELLIOTT V. JACKSON. 
 3 Wisconsin 649. (1854) 
 
 Character of Demand — Ex Contractu or Ex Delicto. 
 
 Assumpsit commenced by attachment by Jackson against 
 Elliott. From judgment for plaintiff, defendant brings error. 
 Reversed. Jackson consigned goods to one Kent to sell on com- 
 mission and Elliott as constable levied on them under an execution 
 against Kent, whereupon Jackson brought this action against 
 Elliott for the value of the goods. 
 
 Ingalls, for appellant. 
 
 F. S. Lovell, for appellee. 
 
 The Court by Smith, J.*** The whole proceedings as shown 
 by the record, present merely an ordinary case, in which the 
 property of a judgment or attachment debtor was levied upon and 
 claimed by a third person ; or, in other words, a fair case for the 
 bringing of an action of trespass, trover, or replevin. But the 
 suit was commenced by attachment, and it doubtless seemed 
 necessary to the learned counsel for the plaintiff below, to bring 
 himself, if possible, within the provisions of the revised statutes, 
 which authorize the commencement of suits by attachment. 
 Section loi of chapter 28 of the revised statutes provides that, 
 "before any such writ of attachment shall be issued, the plaintiff, 
 or some person in his behalf, shall make and file with the justice 
 an affidavit, stating that the defendant therein is indebted to the 
 plaintiff in a sum exceeding five dollars, and specifying the amount 
 of such indebtedness, as near as may be, over and above all legal 
 set-offs, and that the same is due upon contract, express or implied, 
 or upon the judgment or decree of some court, and containing a 
 further statement," etc. 
 
 The making of this affidavit, and the conformity of the cause 
 of action to the nature of the proceeding contemplated and author- 
 ized by this statute, are essential to the jurisdiction of the justice 
 of the writ thereby authorized. 
 
 The proceeding by attachment, with all its safeguards, is at 
 
38 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 best, a violent remedy, and we are not disposed to give to the stat- 
 ute a more liberal construction than a fair interpretation of its 
 letter demands. [<5§4] 
 
 The very essence of the statute is, that to authorize a 
 proceeding by attachment, the cause of action must be an 
 indebtedness over and above all legal set-offs, and that the same 
 is due upon a contract, express or implied. This case is too clear 
 to admit of a doubt. Neither the affidavit nor the declaration set 
 forth a contract, or a state of facts from which a contract may be 
 legally implied. The affidavit pursues the words of the statute, 
 and therefore the justice was authorized to issue the writ. But 
 whenever it appeared, either from the declaration or the evidence, 
 that the true cause of action was not an indebtedness due 
 upon a contract, express or implied, it became his duty to dismiss 
 the case. * * * [dff] 
 
 There are some cases in which a party may waive the 
 tort and sue in assumpsit. When the trespasser has con- 
 verted the property into money, the plaintiff may waive 
 the tortious taking and conversion, and sue for the proceeds, as for 
 money had and received. He is considered as ratifying the sale 
 made by defendant, and in such case can recover so much as prop- 
 erty brought, and no more. But of late, courts have been rather 
 inclined to restrict, than to extend the class of cases falling within 
 the rule which allows the plaintiff to waive the tort and sue in 
 assumpsit. * * * 
 
 In the case before us, there is no pretense of a sale of the 
 goods by the defendant below, nor any conversion of them into 
 money, or other thing of value. The action of assumpsit, there- 
 fore will not lie. This is not a case in which the tort may be waived 
 and it is apparent, from the character of the affidavit, and the 
 extraordinary character of the declaration, or statement of the 
 cause of action, that the only object in view, in bringing 
 an action of assumpsit, was to render the writ [(55(5] of attach- ' 
 ment available. We cannot permit the statute to be thus 
 defrauded, nor its wholesome restrictions evaded by a subterfuge 
 of such kind. If the action of assumpsit can be sustained in this 
 case, it can in every case in which an officer levies on goods or 
 
ATTACHMENT. 
 
 39 
 
 chattels claimed by another, and indeed, in every case of mere tres- 
 pass to personal property. 
 
 Of course we have here had no reference to cases brought 
 against an executor or administrator, or where the tort feasor is 
 dead, and the action of trespass or trover is lost, or to the case of 
 tortious enticing away or hiring of apprentices, etc. These and 
 their like rest upon their own peculiar circumstances, and must be 
 determined according to the legal principles applicable to each, as 
 occasion shall require. * * * 
 
 The judgment of the county court is reversed, with costs. 
 
 b. LIQUIDATED OR UNLIQUIDATED. 
 
 WILSON V. LOUIS COOK MANUFACTURING CO. 
 88 North Carolina 5. (1883) 
 
 Character of Demand— Liquidated or Unliquidated — Capable of IVIeas- 
 urement — What Standard. 
 
 Appeal by plaintiff from an order vacating an order for 
 attachment; the objection being that the action is brought to 
 recover unliquidated damages, too uncertain in amount to enable 
 attachment under Cod. Civ. Proc, 197 providing that the plaintiff 
 may have attachment ''in an action arising on contract for the 
 recovery of money only, or in -an action for the wrongful conver- 
 sion of personal property." 
 
 Biirwell & Walker, for plaintiff. 
 
 Jones & Johnston, for defendant. 
 
 The Court by RuMn, /. * * * The law as regards this matter 
 has been recently fully considered in Price v. Cox, 83 N. C. 261, 
 and as it is impossible to distinguish the two cases in principle, the 
 conclusion then reached must control us now. The rule to bei 
 deduced from that case is, that an attachment may be had in sup- ' 
 port of any demand arising ex contractu, the amount of which is 
 ascertained or is susceptible of being ascertained by some stand- 
 ard, referable to the contract itself, sufficiently certain to enable the 
 plaintiff to aver it in his affidavit, or a jury to find it ; but not so, if 
 the action be one for unlimited damages, in which the contract 
 alleged furnishes no rule for ascertaining them, but leaves the 
 amount to remain altogether uncertain until fixed by the jury, 
 without any definite rule of law to direct them. 
 
40 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 The plaintiff in this action seeks to recover compensation for 
 the loss of such profits, as he conjectures he might have derived 
 from selling buggies as agent for the defendant, had they been 
 furnished him according to the terms of the contract. It is there- 
 fore a case of purely uncertain damages, with no standard fur- 
 nished by the contract itself, or fixed rule of law, for ascertaining 
 them, and it is impossible to suppose a case farther removed from 
 the provisions of the statute than it is. 
 
 In Lawton v. Kiel, 51 Barb. (N. Y.) 30, cited by counsel, the 
 facts were that the defendant contracted to buy sound corn, but 
 bought indifferent corn for the plaintiff. The standard of dam- 
 ages was said to be the difference in the quality and market values 
 of the two kinds of corn ; and as nothing was wanting but for the 
 jury to ascertain that difference, it was held that the plaintiff was 
 entitled to have an attachment under the maxim id certum est quod 
 certum reddi potest; and it was so held too, [f] under somewhat 
 similar circumstances in Garland v. Cunningham, 2,7 Ps- St. 228. 
 But these cases bear no sort of analogy to the one before us, and 
 indeed by referring to the opinions of the judges as delivered in 
 them, they will be found to be in perfect harmony with the 
 decision in Price v. Cox. * * * 
 
 No error. AMrmed. 
 
 .1 think this case very accurately and clearly states and illustrates 
 the rule. Substantially the same rule prevails whether attachment be 
 given to "any creditor," or for the recovery of "any debt" or "any 
 demand." Price v. Cox above was an action for breach of promise to 
 marry. 
 
 Attachment has been held available in an action for damages for 
 breach of contract to furnish tea of a certain quality, the tea furnished 
 being inferior. The measure of damages is the difference between the 
 market value of the tea furnished and that promised. Fisher v. Con- 
 sequa, 2 Wash. C. C.382, Fed. Cas. No. 4816. This is the leading case 
 on this point. The same was held in a similiar action for 
 delivering flour inferior to contract. Wilson v. Wilson, 8 Gill 
 (Md.) 192, 50 Am. Dec. 685. Again it was held available in 
 an action for damages for the non-delivery of goods promised, 
 Goldsborough, v. Orr (lumber), 21 U. S. (8 Wheaton), 217; Hyman v. 
 Newell (cigars), 7 Col. App. 78, 42 Pac. 1016; Stiff v. Fisher (cattle), 2 
 Tex. Civ. App. 346, 21 S. W. 291. Again, though the goods promised 
 were a specific stock of goods then in store (Garland v. Cunningham 
 37 Pa. St. 228), or a certain promissory note, the measure of damages 
 
ATTACHMENT. 41 
 
 ■being the difference between tbe contract price and the face of the 
 note with interest. Dirickson v. Showell, 79 Md. 49, 28 Atl. 896. Again 
 the attachment was held available on a quantum meruit for the use of 
 vessels and for demurrage. Roelofson v. Hatch, 3 Mich. 277. Again 
 in an action for damages for failure to sell as agreed land purchased 
 by plaintiff through defendant in consideration of such agreement. 
 "The amount to be paid is fixed by the terms of the contract, or can be 
 readily ascertained from the information it affords." It is "the differ- 
 ence between the value of the land at the end of the year and the 
 amount which the defendant bound himself to realize from it for the 
 plaintiff." Dunn v. Mackey, 80 Cal. 104, 22 Pac. 64. Again attachment 
 was held available in ail action for damages for failure to tow a cer- 
 tain keelboat up Red river and deliver corn at certain places. Jones 
 V. Buzzard, 2 Ark. 415. Again, for failure to scale logs, thereby pre- 
 venting plaintiff cutting them and causing him expense by the delay. . 
 Messinger v. Dunham, 62 Ark. 326, 35 S. W. 435. Again, attachment 
 was held available in covenant for failure to build a mill and pay $1500 
 for a warranty deed which had been tendered. Barber v. Robeson, 
 15 N. J. L. (3 Green,) 17. Again, in debt for goods sold and delivered 
 and for failure to pay an accepted draft including $25 attorney fees 
 occasioned by such failure. Waples P. G. Co., v. Basham, 9 Tex. Civ. 
 App. 638, 29 S. W. 1118. 
 
 Attachment was Held Not Available on facts very much like Wil- 
 son V. Louis Cook Mfg. Co., except that the contract was to sell cloth- 
 ing by sample. Hochstadler v. Sam. 73 Tex. 315, 11 S. W. 408. This is 
 also an excellent case for the student to read. Again, for refusing to 
 employ a ship according to charter party whereby the owner was to 
 have £670 per month as long as the voyage named should require. 
 Clark V. Wilson, 3 Wash. C. C. 560, Fed. Cas. No. 2841. This is a lead- 
 ing case. Again, for refusing to deed and deliver several parcels of 
 land subject to separate incumbrances, and certain bonds and ctocks 
 in exchange for others held by plaintiff. Hough v. Kugler, 36 Md. 186. 
 Again, for delay 'in selling a cargo of flour and failure to invest the 
 proceeds in a cargo of coffee as agreed. Warwick v. Chase, 23 Md. 
 154. Again, for failing to mine at least 10,000 tons per annum and 
 pay $2 per ton royalty. Heckscher v. Trotter, 48 N. J. L. 419,' 5 Atl. 
 581. Again, for failure of title to a patent sold to plaintiff. Mills v. 
 Findlay, 14 Ga. 230. Again, for failure to ship a stock of boots and 
 shoes to plaintiffs, who had rented a store to engage in business. 
 Hoover v. Hathaway, 20 Dist. Col. (9 Mackey), 591. Again, for value of 
 iron defendant agreed to carry safely but lost. Hazard v. Jordan, 12 
 A)a. 180. 
 
 While the decisions above named are not all reconcilable the 
 courts rendering them claim to follow the rule announced in Fisher v. 
 Consequa above, and in the main they are in harmony with Wilson v. 
 Louis Cook Mfg. Co. 
 
 Uncertainty Immaterial. In several cases it is declared that un- 
 certainty as to the amount of plaintiff's demand is no objection and 
 
42 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 the attachment sustained. See following. For negligently towing 
 a raft of logs; New Haven S. S. Co. v. Fowler, 28 Conn. 103; negli- 
 gently carrying goods; Lenox v. Howland, 3 Caines, N. Y., 257, 323; or 
 for a defect in a grain drill sold and warranted to plaintiff.; Baum- 
 gardner v. Dawagiac Mfg. Co., 50 Minn. 381, 52 N. W. 964; or for refus- 
 ing to accept and pay for a stock of hardware at agreed price; Lord v. 
 Gaddis, 6 Iowa 57; or for damages on an attachment bond; Withers v. 
 Brittain, 35 Neb. 436; 53 N. W. 375; or for breach of promise to 
 marry, attachment being given on "all money demands," Morton v. 
 Pearman, 28 Ga. 324; or for unpaid duties on silks smuggled; V. S. v. 
 Graff, 67 Barber (N. Y.) 304. See also Steen v. Norton, 45 Wis. 418. 
 
 In Louisiana it is said attachment is given. to recover a debt and 
 an action may be in the debit or the detinet, "which is on an express 
 agreement to deliver any specific property." Therefore attachment 
 lies in an action against a carrier for loss of goods; Hunt v. Norris 4 
 Martin (La) 517; and in an action for failure to bind and return 
 books. Turner v. Collins, 1 Martin, N. S. 369. 
 
 If tlie penalty named in a bond is to cover such damages as the 
 party may become entitled to, and not to liquidate the damages, attach- 
 ment does not lie unless the damages are so certain in amount as to 
 comply with the rule announced in the text. Brown v. Hoy, 16 N. J. 
 L. 157; Cheddick v. Marsh, 21 N. J. L. 463; State v. Beall, 3 H. & M. 
 (Md.) 347, Hough v. Kugler, 36 Md. 186. 
 
 Amount of Final Recovery. "And though the defendant 
 may contest the demand upon him, or may show that no damage has 
 in fact been sustained by the plaintiffs, that does not affect the ques- 
 tion whether the contract supplies the plaintiff a measure of dam- 
 ages to which he can make affidavit." Dirickson v. Showell, 79 Md. 
 49, 28 Atl. 896. 
 
 C. MIXED DEMANDS. 
 
 HAWES V. CLEMENT. 
 64 Wisconsin 152, 25 N. W. 21. (1885) 
 
 Character of Demand — Accounting Necessary to Find Amount — Inter- 
 vention — Who Raise Question. 
 
 Motion by Clement and five other execution creditors of Boyd 
 to vacate an attachment of Boyd's property, levied in an action by 
 Hawes against Boyd, and a counter motion by Hawes that the 
 property be used in satisfaction of this judgment. The circuit 
 court denied the motion by Clement ef al. and granted Hawes' 
 motion. Clement et al. appeal. Reversed. 
 
 The principal ground for the motion to vacate was that 
 Hawes' claim was of such a nature that an attachment could not 
 lawfully issue in an action to enforce it. 
 
ATTACHMENT. 43 
 
 Fethers, Jeifris & Smith, for appellants. 
 
 Carpenter & McGowan and Wm. Ruger, for respondent. 
 
 The Court by Lyon, J. The moneys in the hands of the 
 sheriff, being the proceeds of the sale of the attached property, 
 are under the control of the court, and doubtless the court may 
 inquire and determine who is entitled tliereto, and order the same 
 paid over to the person or persons so entitled. The procedure to 
 that end, in form, is in the action of Hawes v. Boyd^ [i54] yet, in 
 substance and effect, it is not strictly in that, or in either of the 
 actions against Boyd, but is rather in the nature of a special pro- 
 ceeding growing out of and founded upon all of those actions ; to 
 which proceeding all the attaching creditors of Boyd (and perhaps 
 Boyd also) are parties. If the respondent's attachment was valid, 
 he is entitled to have his judgment paid first out of such moneys. 
 If his attachment is not valid, the appellants, the other attaching 
 creditors of Boyd, are first entitled to have the moneys applied in 
 payment of their judgments in due order of priority. Manifestly 
 the appellants may, in some proceeding, litigate and have deter- 
 mined the question of the validity or invalidity of such attachment. 
 Regarding substance rather than mere form, we think they have 
 adopted an effectual procedure to obtain an adjudication of that 
 question. If authorities are required to a proposition so reason- 
 able and just, they may be found cited in the notes to sec. 275, 
 Drake on Attachment. * * * 
 
 The cause of action- stated by the respondent in his action 
 against Boyd is to the effect that in March, 1884, he delivered to 
 Boyd goods, wares, and merchandise of the value of $7,814.83 to 
 be sold by the latter for him at Janesville. * * * [155] * * * 
 
 The complaint concludes with the following averments : "This 
 plaintiff further shows that he is unable to state what, if any, por- 
 tion of said goods so delivered by this plaintiff to said defendant 
 to be sold as aforesaid, remain unsold ; and this plaintiff will be 
 unable to state the exact amount till after he takes an inventory of 
 the goods remaining unsold and belonging to this plaintiff; and 
 this plaintiff further shows that the balance of said goods so deliv- 
 ered to said defendant and remaining unsold, or sold and unac- 
 counted for, is the sum of $6,845.18, with interest from the said 
 
44 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 14th day of July, 1884." Judgment is demanded for the sum last 
 named. 
 
 It is essential to a valid execution of a writ of attachment 
 that the affidavit annexed thereto should state not only a statutory 
 cause for issuing the writ, but also the amount of the defendant's 
 indebtedness to the plaintiff "as near as may be, over and above 
 all legal set-offs." R. S. § 2731. The statement of the amount 
 of such indebtedness is a most vital one. For the purposes of the 
 execution of the writ it imports absolute verity, because it is not 
 traversable in a proceeding by traverse to dissolve the attachment. 
 R. S. sec. 2745. Such statement is the guide to the officer execut- 
 ing the writ as to the amount of property he ought to seize in order 
 to secure the plaintiff. Hence it is required for the protection of 
 the debtor, and of his other creditors as well. 
 
 Considering the importance of such statement, it necessarily 
 and logically follows that if the cause of action be of such a char- 
 acter that it is impossible for the plaintiff or [156] his agent to 
 know the amount of such indebtedness, no attachment founded 
 upon it can be lawfully executed. 
 
 Taking the most favorable view for the respondent, Hawes, 
 •of the transactions between himself and Boyd, and we have this 
 state of facts : Hawes delivered his goods to Boyd, in trust that 
 Boyd would sell them and pay over to him the proceeds of the 
 sales, less one half the net profits. In stating the indebtedness. 
 Halves included nothing for profits. He merely claimed the value 
 of the goods delivered to Boyd, less payments. We may therefore 
 exclude from consideration any question of the amount of 
 profits. But in order to ascertain the amount of Boyd's 
 indebtedness to Hawes at any given time, it was necessary to know 
 what amount Boyd had realized for such of the goods as he had 
 theretofore sold. It was not sufficient to know merely what goods 
 he had sold, for the value thereof is not the measure of his indebt- 
 edness. It is the amount realized which, under the contract men- 
 tioned in the complaint, measures the liability of Boyd. Hence, 
 before Hawes, or any one for him, could state the amount of 
 Boyd's indebtedness, it was necessary to have an accounting of the 
 ^oods sold and the prices realized therefor. Because the respond- 
 
ATTACHMENT. 45 
 
 ent's attachment was sued out and executed before any such 
 accounting was had, and before he or his agent knew, or could 
 know, the amount of Boyd's indebtedness (all which sufficiently 
 appears in the complaint in that action), it must be held that the 
 respondent obtained no lien upon the property attached, as against 
 the appellants, who subsequently attached the same property. * * * 
 [j_5p] * * * 
 
 It results from the views above expressed that the order of 
 the circuit court, that the respondent's judgment and execution be 
 first paid out of the moneys in the hands of the sheriff, must be 
 reversed, and the cause remanded with directions that such moneys 
 be first applied in satisfaction of the appellants' judgments and 
 executions in due order of priority. 
 
 By the Court. It is so ordered. 
 
 Partnership Accounting. — "This, then, is a suit for the liquidation 
 and settlement of a partnership, the ascertainment of the balance and 
 decree therefor. It is true that the plaintiff professes to have calcu- 
 lated and to his own satisfaction ascertained the balance; but it is 
 quite obvious that the partnership affairs involve mutual items of 
 debit and credit, numerous and diversified in their nature. >" * * It 
 would seem impossible under the showing of the petition itself, and 
 especially as it does not allege that any accounts have been rendered, 
 nor any balance of account actually struck by the partners, that the 
 plaintiff should be able to declare with certainty, the amount which, 
 on a final liquidation and settlement of these affairs, will be found due 
 to him. * * * We do not, however, wish to be considered as laying 
 down the rule that, in no case of joint adventure can a partner proceed 
 by attachment. Suits may occur in which the business of the adven- 
 ture may be so limited and simple in its features, as to exhibit a case 
 where the party might be considered as able to swear to a positive and 
 precise balance." Decree dissolving the attachment affirmed. Brine- 
 gar V. Griffln, 2 La. An. 154. To same effect. Johnson v. Short, 2 La. 
 .4n. 277; Barrow v. McDonald, 12 La. An. 110. 
 
 An excellent argument by Bwing, C. J., to the effect that attach- 
 ment does not lie if the amount is not' sufficiently certain to enable the 
 court to fix the amount of bail which the defendant must give to dis- 
 solve the attachment, will be found in Jeffery v. Wooley, 10 N. J. L. (5 
 Halsted) 145. In that case the attachment in an action on a plea of 
 covenant was quashed because it did not appear from the attachment 
 affidavit or other proceedings in the action that the covenant broken 
 was of such a nature that the plaintiff's damages for the breach of it 
 would be certain. "The jurisdiction must be shown not presumed." 
 
46 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 D. The Statutory Exigency or Ground for Attachment. 
 
 a. NECESSITY OF, WHO HAY OBJECT AND HOW. 
 
 PETRIE V. PAINE. 
 
 9 Vermont 271. (1837) 
 
 Ground for Attachment — Statutory Exigency Necessary — Wlio Object. 
 
 Action by Emerson & Petrie against Nathan Paine as trustee 
 ■of George Petrie, principal debtor. Judgment for the trustee. 
 Plaintiff excepted and the cause passed to this court. Affirmed. 
 
 W. Uphain, for plaintiff. 
 
 L. B. Peck, for trustee defendant. 
 
 The Court by Collamer, I. The trustee interposed a plea in 
 bar, that Geo. Petrie was not an absconding or concealed debtor. 
 The county court refused, on motion, summarily, to dismiss this 
 plea, to which the plaintiff excepts, as error. * * * The plaintiff 
 insists, that the trustee had no right to make this plea in his own 
 behalf, but only in behalf of the principal debtor, after confessing 
 himself trustee. The plea, on its face, purports to be the plea of 
 the trustee, in his own right. * * * {2^4] * * * 
 
 The statute prescribes a form for the process, in which the 
 plaintiff alleges, that the principal debtor is absconded or con- 
 cealed, and that the trustee has effects, etc., and calls on him to 
 answer, etc. This statute clearly interferes with the common law 
 rights of the trustee, in many important particulars. It subjects 
 him to the process of a stranger, with whom he has no privity. It 
 calls him into court, when his creditor does not desire it. It sub- 
 jects him to personal disclosure. It enables the court, on that dis- 
 closure and other evidence, to give a judgment against him. * * * 
 It is not to be supposed this was intended to be done, but in a case 
 of real necessity, such as is clearly within the statute. The stat- 
 ute, very clearly, subjects no man to this, but in the case of an ab- 
 sconding or concealed debtor. * * * 
 
 It is said the principal debtor may make this same plea, but his 
 neglecting or refusing does not deprive the trustee of so doing. * * 
 
 Judgment affirmed. 
 In the following attachment cases garnishees pleaded that plaint- 
 iffs' demand was not one on which attachment was allowed. Hoover 
 v. Hathaway, 20 Dist. Col. (9 Mackey), 591, Warwick v. Chase, 23 Md. 
 
ATTACHMENT. 47 
 
 154. But under many statutes garnishment is a remedy independent 
 of attachment and therefore available though attachment might not be. 
 
 b. AS TO ALL OF THE DEFENDANTS OR PARTIAL AND SEVERAL. 
 
 WILEY V. SLEDGE. 
 8 Georgia 532- (i8so) 
 Ground for Attachment — As to Part Only of Defendants — Right to Sev- 
 eral Action — Death of Partner. 
 
 Attachment by L. M. Wiley & Co. against Sledge for a debt 
 due plaintiff from Birdsong & Sledge, partners, on the ground 
 that Sledge was removing from the state. From a judgment 
 quashing the attachment plaintiffs appeal. Affirmed. 
 
 H. Holt, for plaintiffs. 
 
 W. Dougherty, for defendants. 
 
 The Court by Lumpkin, J. The only question in this case is, 
 whether, when one of the members of a- firm, transacting business 
 in Georgia, resides out of the State, an attachment will lie against 
 him on a firm debt, to be levied on the partnership effects ? 
 
 The case is not without its difficulties. We think, however, 
 that the attachment will not, ordinarily, lie. This summary rem- 
 edy is allowed only against the debtor of the plaintiff in attach- 
 ment. Here the debtor is the firm of Birdsong & Sledge, and not 
 Nathaniel Sledge, individually. For this simple reason alone, it 
 would seem that this proceeding could not be sustained. It is not 
 authorized by the language of the law. Partners must be sued 
 • jointly; and while there is no process [333] of outlazvry in civil 
 cases in Georgia, the return of non est inventus has, under the act 
 of 1820, (Prince, 445), pretty much the same effect. Still, the 
 action must be joint. An attachment is a suit. Why should the 
 plaintiff be permitted, in this form of proceeding, more than by 
 ordinary process, to go against on.e partner separately ? 
 
 In Alabama, it has been decided that a non-resident partner 
 may be attached, although there is one of the firm resident in the 
 State. Winston v. Ewing, i Ala. 129. Green v. Pyne, Ibid, 235. 
 ConkUn V. Harris, 5 Ala. 213. But these cases are put by the 
 court upon the attachment law of that State, which makes the 
 debts of partners joint and several, allowing a remedy against 
 either. Aikin's Digest, 268. 
 
\ 
 
 48 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 The remedy by attachment is allowed in this State, because 
 the ordinary process of law cannot be served on the debtor. If 
 personal service can be effected, then the attachment cannot issue. 
 Here, notwithstanding the non-residence of one of the firm, suit, 
 under the Act of 1820, can be prosecuted to judgment against the 
 partners who live in the State, and the judgment will bind the 
 partnership effects, as well as the individual property of the part- 
 ners who are served. A debtor may fraudulently . remove his 
 property from the State, for the purpose of defeating his creditors, 
 yet if he remain himself, an attachment will not lie ; and why ? 
 Because a ca. sa. would coerce the surrender of the property thus 
 eloigned. — The same result could be obtained by ordinary suit 
 against the resident partner. The law may be defective in not 
 providing for this case, as has been done in our sister State. It 
 is not for us to remedy the evil. 
 
 We do not hold that a state of things might not exist, which 
 would authorize an attachment against one or more non-resident 
 members of a firm on a copartnership contract — as, for instance, 
 the death of the resident partner or partners. Suffice it to say, 
 that the record presents no such circumstances. 
 
 Judgment affirmed. 
 
 Curtis V. Hollingshead, 14 N. J. L. (2 Green) 402, contains 
 an elaborate argument by Hornblower, C.J., of the point that the stat- 
 ute allowing attachment because the defendant is a non-resident or has 
 a,bsconded does not mean that the defendant or part of the defendants 
 are non-residents, etc. To the same effect see Corbit v. Corbit, 50 N. ' 
 J. L. 363 ; Remington v. Howard Express Co., 8 R. I. 406, Cowdin v. Hur- 
 ford, 4 Ohio, 133; Taylor v. McDonald, Id. 150; Wilson v. Circuit Judge, 
 82 Mich. 169, 46 N. W. 439; Leach v. Cook, 10 Vt. 239. 
 
 Though the singular number, "debtor," be used in the statute, at- 
 tachment lies against joint debtors if ground for attachment exists 
 against all; but one of several joint debtors could not be sued alone 
 by attachment merely because ground for attachment does not exist 
 as to others. Kouns v. Brown, 18 Ky. (2 T. B. Mon.) 146. But if 
 the obligation is joint and several he may be. Leach v. Swann, 8 
 Blackf. (Ind.) 68. 
 
 The fact that some of the non-resident defendants were found and 
 personally served is no reason for dismissing an attachment Issued on 
 the ground of non-residence. Jackson v. Perry, 52 Ky. (13 B. Mon.) 
 231. 
 
 In some states statutes exist making all joint debts joint and sev- 
 
ATTACHMENT. 49 
 
 eral, thus enabling suit against any one of tlie debtors ; and under these 
 It Is held that In an action against all any ground for attachment ex- 
 isting against one enables an attachment of his property. Board of 
 Comm'rs of JefEerson Co. v. Swain, 5 Kan. 376; Searcy v. Platte County, 
 10 Mo. 269 ; Franciscus v. Bridges, 18 Mo. 208. And in some states this 
 enables the attachment of the interest of both in their joint property.. 
 Williams v. Muthersbaugh, 29 Kan. 730; Cohen v. Gamble, 71 Miss. 478, 
 15 South. 236. 
 
 In Kentucky the statute allowing attachment to issue against "a 
 defendant or several defendants who or some of whom" have abscond- 
 ed or fraudulently disposed of property, etc., is held to enable attach- 
 ment of the property of all when one absconds. Mills v. Brown, 2 
 Mete. 404; Duncan v. Headley, 4 Bush. 45. 
 
 But in Michigan under a similar statute the court by Judge Cooley 
 held that only the property of the partner attempting to defraud his 
 creditors could be attached. Edwards v. Hughes, 20 Mich. 289. Same 
 point, Bogart v. Dart, 25 Hun (N. Y.) 395. 
 
 In New York, under a statue providing: "That whenever any per- 
 son, * * * being indebted within this state shall either secretly 
 depart from or keep concealed within the same," etc., his creditors may 
 attach (Laws of N. Y. 1813, p. 157), it was held that in an action against 
 partners for a partnership debt the property of one who had absconded 
 might be attached though the other defendants resided within the 
 state and were capable of being arrested. Matter of Chipman, 14 
 Johns. 217. A similar decision was reached in Wisconsin under a simi- 
 lar statute (Bank of Northwest v. Taylor, 16 Wis. 638), and again in 
 Iowa in which Wright, C.J., giving the opinion of the court, very ably 
 discusses the question overruling several prior decisions of the same 
 court to the contrary. Chittenden v. Hobbs, 9 Iowa, 417. I believe 
 McHaney v. Cawthorn, 4 Heisk. (Tenn.) 508, is to the same effect, 
 though I have not access to the statute. But the partnership property 
 could not be attached in such a case, for the remaining partners have 
 a right to retain it to pay partnership debts. In re Smith, 16 Johns. 
 102. But his interest In the property, what might be left after final ac- 
 counting, could be attached. Staats v. Bristow, 73 N. Y. 264. If the 
 defendants were not partners such an attachment takes the undivided 
 interest of the defendant against whom ground for attachment exists, 
 and It is held that the sheriff may retain possession though the attach- 
 ment was issued against all and quashed as to the others for want of 
 grounds. Bank of Northwest v. Taylor, 16 Wis. 638. When the part- 
 nership through one of the partners was fraudulently disposing of the 
 assets it was held that attachment lay against the firm property. Wil- 
 son Obear G. Co. v. Cole, 26 Mo. App. 5. But when the partnership 
 obtained the credit on the fraudulent representation of one partner 
 who made the purchase it was held that the individual property of the 
 innocent partner could not be attached in a suit against the firm for 
 the debt it had thus fraudulently contracted. Opinion by Hooker, J., 
 Long and Grant, JJ., concurring, Montgomery, J., and McGrath, C.J., 
 dissenting. Jaffray v. Jennings, 101 Mich. 515, 60 N. W. 52. 
 4 
 
50 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 Ground for Attachment as to All but not Same Ground. Wlien one 
 cause for attachment existed against one partner and another cause 
 existed against the other an attachment of the firm property In an ac- 
 tion against the firm was sustained though neither ground existed 
 against both. Sellew v. Chrisfield, 1 Handy (O.) 87. See also Starr 
 V. Mayer, 60 Ga. 546; Bank of Northwest v. Taylor, 16 Wis. 638. 
 
 C. EXISTING AS TO THE WHOLE DEMAND OR ONLY A PART. 
 
 MEYER V. EVANS. 
 27 Nebraska 367, 43 N. W. 109. (1889) 
 
 Character of Demand — Part Proper, Part Not, Effect — Good Faith. 
 
 Action by Max Meyer et al. against F. B. Evans. From 
 judgment of the district court discharging certain attachments of 
 Evans' property plaintiff brings error. Affirmed. 
 
 Charles Ogden, for plaintiff. 
 
 W. S. Shoemaker, for defendant. 
 
 The Court by Cobb, J. * * * It appears that the plaintiffs 
 were wholesale dealers in Omaha, and the defendant a retail pur- 
 chaser on credit. On [368] February i, 1887, the defendant 
 purchased of plaintiffs a bill of goods amounting to $8.50 on 
 credit, without question or representation or any kind. On Feb- 
 ruary 2, following, he purchased a larger bill amounting to $245.70 
 on fraudulent representations, it is claimed by plaintiffs and de- 
 nied by the defendant, and, on the following day, a third bill of 
 $8.50; total, $262.70. * * * [571] * * * The county court found 
 that the defendant had fraudulently contracted a portion of the 
 debt on which the attachments had been issued, but that another 
 portion, $8.45, was contracted prior to the time that any fraudu- 
 lent representations had been made by defendant, and therefore 
 the attachment did not obtain, according to law, and was dis- 
 charged. The district court affirmed this decision. 
 
 The case, in this court, presents the same question as that of 
 Mayer v. Zingre, 18 Neb. 458, in which the attachment was dis- 
 charged for want of grounds covering the whole debt. Counsel 
 for plaintiffs in error seek to distinguish it from that case from the 
 fact that that attachment was for $381.20, while the grounds of 
 attachment set up in the affidavit of the plaintiffs, only applied to 
 $51.09 of the debt; and in the case at bar it is argued that put of 
 
ATTACHMENT. 51 
 
 $262.70, the grounds of attachment found by the county court, 
 and affirmed by the district court, apply to all but $8.45, and coun- 
 sel claims that this comparatively insignificant item falls within 
 the rule of the maxim de minimis non curat lex, "the law takes no 
 notice of extreme trifles." 
 
 While it is not impossible that a case might arise in which it 
 would be so apparent that an insignificant item had unintentionally 
 been added to the amount sued for, which did not fall within the 
 grounds of attachment, that it might {372^ properly be rejected, 
 and the claim purged by the plaintiff to that which should have 
 been the initial claim, it does not seem apparent that proceedings 
 can be sustained for any sum, however insignificant, for which 
 no grounds of attachment are claimed, simply on account of its 
 being merged and found in another claim for which sufficient 
 grounds of attachment do exist. The judgment of the district 
 
 court is affirmed. 
 
 Judgment affirmed. 
 
 This case goes as far as any I have seen, but a majority of the de- 
 cisions seem to be in harmony with Meyer v. Evans. See Wlllman v. 
 Preldman, (Idaho) 35 Pac. 37; Wilson v. Harvey, 52 How. Prac. (N. Y.) 
 126; Estlow v. Hanna, 75 Mich. 219, 42 N. W. 812; Stiff v.. Fisher, 85 
 Texas, 556; Smith Drug Co. v. Casper Drug Co. 5 Wyo. 510, 40 Pac. 979. 
 
 While recognizing the rule announced in the above cases, Mackey 
 V. Hyatt, 42 Mo. App. 443, is not reconcilable with Meyer v. Evans. It 
 was on similar facts and attachment was sustained, the court saying: 
 It is "a debt in sblido and not severable. It is a running account for 
 merchandise, and an action on any part of it would bar an action for 
 the balance. * * * When we admit that part of an indivisible debt 
 was contracted In fraud, we may say the entire debt was." See also 
 Dawson v. Brown, 12 Gill. & J. (Md.) 53; Gross v. Goldsmith, 4 Mackey 
 (D. C.) 126. 
 
 The fact that Plaintiff Fails to Recover as Much as He Swore to 
 be due is not ground for dismissing the attachment (Brewer v. Ains- 
 worth, 32 Ga. 487; Sackett v. Partridge, 4 Iowa, 416; Mendes v. Prei- 
 ters, 16 Nev. 393 ; Donnelly v. Elser, 69 Tex. 282, 6 S. W. 563 ; Dlrickson 
 V. Showell, 79 Md. 49, 28 Atl. 896) ; unless more is intentionally claimed. 
 Tucker v. Green, 27 Kan. 355 ; Hale v. Chandler, 3 Mich. 531, and cases 
 cited therein. 
 
52 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 d. ANY LEGAL GROUND OR ONLY THE ALLEGED GROUND. 
 
 MATTER OF FITZGERALD. 
 2 Caines (New York) 317. (1805) 
 
 Ground for Attachment — One Alleged — Another Exists — Absconding — 
 
 Residence. 
 
 An application to supersede an attachment issued against the 
 property of Fitzgerald, as an absconding or concealed debtor. 
 Granted. 
 
 The Court by Livingston, /. * * * We are asked for this 
 supersedeas on two grounds : ( i ) Because Fitzgerald, being a 
 non-resident, was not liable, although transiently within the state 
 at the time, to have his property attached as an absconding or con- 
 cealed debtor, but ought to have been proceeded against as an 
 absent debtor. (2) Because the creditor, who obtained the attach- 
 ment, being also resident abroad, had no right to this remedy 
 against Fitzgerald, if the latter be regarded as an absent debtor. 
 We think both these objections are well taken. * * * [jip] If 
 he led so roving a life abroad as to render it difficult to fix on his 
 domicil, it will not make him a resident of this state. He still 
 remains an absent debtor, the animus revertendi having never been 
 laid aside. 
 
 Kent, Ch., J. and Spencer, J. gave no opinion, not having 
 heard the argument. Supersedeas awarded. 
 
 e. PRECISION REQUIRED IN THE ALLEGATIONS AND PROOF. 
 
 JACKSON V. BURKE. 
 SI Tennessee (4 Heiskell) 610. (1871) 
 
 Ground for Attachment — Disposing of Property — Allegation and Prorff. 
 
 Bill quia timet by J. A. Jackson against Jas. M. Burke, accom- 
 panied by an attachment. From a decree discharging the attach- 
 ment complainant appeals. Affirmed. 
 
 R. P- Rains, for complainant. 
 
 McDearmon, for defendant. 
 
 The Court by Sneed, J. * * * The grounds upOn which the 
 complainant asked the attachment are set forth in the bill as fol- 
 lows, after stating that since the complainant became so bound 
 [612] as surety, he, "the defendant, has become dissipated, care- 
 
ATTACHMENT. 53 
 
 less, almost an entire sot — has become otherwise greatly in debt, 
 and is becoming daily more so, produced by his daily dissipated 
 habits, and is now utterly insolvent: he charges that he has rea- 
 sons to believe, and does believe, that he, the defendant, will con- 
 vey and dispose of his groceries and his articles in his said gro- 
 cery, in order to defraud his creditors." 
 
 Although the attachment laws are to be liberally construed, 
 so far as they regard the application of the remedy, yet so far as 
 they prescribe the causes for which an attachment may issue, no 
 material departure from the specific requirements of the statute 
 has ever been tolerated by this court. The remedy is in deroga- 
 tion of the common law — harsh and summary in its operation, and 
 very liable to be used as an instrument of injustice and oppression. 
 It was intended as a means of counteracting the devices and ma- 
 chinations of fraud and dishonesty, and in the line of its legiti- 
 mate mission it is, and it should be, liberally construed and en- 
 forced. It was never intended that a debtor pursuing his ordi- 
 nary avocation, however improvident or thriftless he might be, 
 should have his property seized by attachment, unless he had 
 placed himself beyond all doubt within the provision and meaning 
 of the statute. And even where a clear case is made, by affidavit, 
 if the defendant take issue and traverse the grounds alleged in the 
 affidavit, the burden of proving their verity li§s.upon the com- 
 plainant. Nor is the phraseology used in f(5jj] prescribing the 
 various grounds upon which this remedy is allowed, of uncertain 
 or doubtful construction. The words are of the plainest import, 
 and admit of but one interpretation. 
 
 The bill in this case cannot be sustained as an attachment bill, 
 because neither one of the grounds which the statute prescribes is 
 alleged in'the bill. The words that "the complainant believes and 
 has reason to. believe that the defendant will convey and dispose 
 of his groceries and his articles in said grocery, in order to de- 
 fraud his creditors," do not import that he is about fraudulently 
 to dispose of his property. The affidavit must show that the de- 
 fendant has fraudulently disposed of his property, or that he is 
 about to do so. These words about fraudulently to dispose of his 
 property, import an exigency by which the creditor's debt is in 
 
 \ 
 
54 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 peril of immediate loss unless this extraordinary remedy is award- 
 ed 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 
 fraudulent 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 intent — an act which though not yet consummated, is presently 
 to be done. We do not say that some form of expression might 
 not be adopted which would be equivalent to charging in the words 
 of the statute — but it is safe to give the [614] very words of the 
 statute, as the meaning of those words is unmistakable. The de- 
 fendant has a right to a specific charge, that he may have an op- 
 portunity to traverse it. If it be charged that he is about to do an 
 act, he can take issue 'upon the charge and make his defense ac- 
 cordingly. But if it be charged that he zvill do it, upon the defend- 
 ant's taking issue, how could the plaintiff, upon whom the burden 
 of proving it lies, establish such a fact? The defendant would 
 scarcely be called upon to defend against the mere contingencies 
 
 and eventualities of the future. * * * 
 
 The decree is affirmed. 
 An affidavit containing tlie allegations in the words of the statute 
 is not subject to exception in any manner, unless, 1, so indirect that 
 perjury could not be assigned on it or, 2, the issuance of the writ is dis- 
 cretionary, depending on the facts shown. Drake, Attach. §§ 104-112; 
 Rood, Garnishm. S§ 251-254. 
 
 /. CONTRACTED OK PAYABLE IN THE STATE. 
 
 ORDENSTEIN v. BONES. 
 — Arizona Ter. — , 12 Pac. 614. (1887) 
 
 Character of Demand — Contracted or Payable in State — Effect of Ac- 
 knowledgement. 
 
 Attachment by Ordenstein against Bones and his partner. 
 From judgment dissolving the attachment plaintiff appeals. 
 Affirmed. 
 
 Herndon & Hawkins and E. M. Sanford, for apj>ellants. 
 
 Rush Wells and Hozvard, for appellees. 
 
 The Court by Barnes, J. The statute (Comp. Laws, 2257) 
 authorizes the issuing of an attachment writ where plaintiff sues 
 
ATTACHMENT. 
 
 55 
 
 to recover "an indebtedness upon a contract, expressed or implied, 
 for the direct payment of money, and that such contract was 
 made or is payable in this territory." PlaintifiE in this case was a 
 merchant doing business in California, and sold goods to defend- 
 ants, who were living in this territory. It is admitted that such 
 sale of goods was made in California, and that such contract 
 would not support an attachment writ. After the sale was made, 
 however, defendants, when pressed for payment, and being unable 
 to pay then, were asked to acknowledge the debt, and did so in 
 the following words, in writing : 
 
 Prescott, November i6, 1885. 
 "The above balance, fourteen hundred and ninety-three 
 96-100 dollars, due Ordenstein & Co., is correct. 
 
 Bones & Spenser." 
 
 This was written on an account for goods sold, at the place of 
 business of defendants, in Prescott, Arizona. This writing is 
 made the basis of this suit, and an attachment writ was issued on 
 the ground that this latter writing is a contract made in this terri- 
 tory, and payable here. 
 
 We have been referred to many cases tending to show that an 
 account stated was a new contract at common law, and that the 
 above writing creates an account stated. At common law, when 
 an amount due on an open account was agreed upon, then the law 
 implied a promise to pay that particular amount. So, when goods 
 were sold and delivered, the law implies a contract to pay the price 
 for them. It is insisted that, being an account stated, it became 
 an implied contract to pay, and, made in this territory, brings the 
 action within the attachment laws. While much has been said and 
 written by way of argument which sustains this view, yet a care- 
 ful analysis of an account stated at common law leAds to the con- 
 clusion that it amounts to a solemn admission of the fact of in- 
 debtedness, which, if proved, makes unnecessary other evidence 
 of the indebtedness, rather than that it is a new contract. 
 
 It is said in Chace v. Tralford, 116 Mass. 532: "An account 
 stated is an acknowledgment of the existing condition of liability 
 between the parties. From it the law implies a promise to pay 
 whatever balance is thus acknowledged to be due. It thereby be- 
 
56 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 comes a new and unpaid cause of action, so far as that a recovery 
 may be had upon it without setting forth or proving the separate 
 items of Hability from which the balance results." This case, 
 therefore, treats it rather as an admission of a fact than as a con- 
 tract, and the case decides that the statute of limitations begins to 
 run from the date of the last item of the account. The account 
 stated is not a new promise, to bring an account within the statute 
 of limitations. To the same effect is White v. Campbell, 25 Mich. 
 
 463- 
 
 If an account stated is not a new promise, to bring an open 
 account within the statute of limitations, a fortiori, it is not a con- 
 tract made in this territory, for goods sold out of the territory, to 
 sustain an attachment. This is a summary remedy, and a plaintiff 
 must clearly come within its provisions to invoke its powers. Eck 
 V. Hoffman, 55 Cal. 502 ; Dalton v. Shelton, 3 Cal. 206. By the 
 paper sued on in this case the defendants simply say : "The above 
 balance due is correct." This is a solemn admission of indebted- 
 ness, which could only be questioned for mistake or fraud ; but it 
 is simply an admission by defendants that they owe plaintifif a cer- 
 tain amount for the goods sold as stated in the account. The par- 
 ties intended no more than that. Gooding v. Hingston, 20 Mich. 
 441. There is a broad distinction' between an "admission" and a 
 "contract." Nothing short of a contract made or payable in this 
 territory gives the right to a writ of attachment. We do not think 
 this paper is more than an admission of indebtedness. It does not 
 change the nature of the old contract, or make a new one in this 
 territory, but it dispenses with proof of the account. 
 
 The judgment of the district court dissolving the attachment 
 is affirmed. 
 
 "It is argued that, although the contract was not made nor by Its 
 terms payable in this state, yet because the defendants reside here and 
 the action is transitory, that therefore it is payable here and entitled 
 to the attachment." Held contra. Dulton v. Shelton, 3 Cal. 206. Tra- 
 bant V. Rummell, 14 Ore. 17, 12, Pac. 56. See also in Matter of Pitch, 
 2 Wend. (N. Y.) 298. 
 
 When not expressly so restricted, attachment and garnishment are 
 available though the debt sued on was contracted and payable else- 
 where (Fisher v. Consequa, 2 Wash. C. C. 382, Fed. Gas. No. 4816), and 
 both parties are non-residents of the state (Newland v. Circuit Judge, 
 
ATTACHMENT. 57 
 
 S5 Mich. 151, 48 N. W. 544; Sheldon v. Blauvelt, 29, S. C. 453, 7 S. B. 593, 
 1 L. R. A. 685; Mitchell v. Shook, 72 111. 492), and the ground of attach- 
 ment Is that defendant is a non-resident. Payne v. First Nat. Bank, 
 16 Kan. 147. 
 
 g. FRAUDULENTLY INCURRED. 
 
 WACHTER V. FAMACHON. 
 62 Wis. 117, 22 N. W. 160. (188s) 
 
 Oround for Attachment — Fraudulently Incurring Obligation — Obliga- 
 tion Defined. 
 
 Attachment by Wachter against Famachon. From a judg- 
 ment dismissing the attachment plaintiff appeals. Reversed. 
 
 The trial was on a traverse of the attachment affidavit, which 
 charged, as ground for attachment, that defendant fraudulently 
 contracted the debt and had assigned, or was about to assign, his 
 property to defraud his creditors. 
 
 Thomas & Fuller, for appellant. 
 
 Wilson & Provis and W. H. Evans, for appellee. 
 
 The Court by Orton, J. * * * From a careful examina- 
 tion and consideration of the evidence we are satisfied that as to 
 the first cause assigned in the affidavits, the court erred, and ought 
 to have found that the obligations were fraudulently incurred, and 
 that as to the second cause the court found correctly. Either of 
 these causes would sustain the attachments. 
 
 On the first ground, and as to the first above case, the evi- 
 dence was substantially as follows : The defendant had been long 
 engaged in the business of merchandising, milling, etc., and had 
 apparently been doing a very large and successful business, and 
 had enjoyed the general confidence and [up] large credits, and 
 was in possession of a large amount of property. He had given 
 the plaintiff his note for $i,ooo, which, on January 3, 1882, was 
 past due, and the plaintiff wanted his money. The defendant 
 desired to procure an extension of the time of payment, and to 
 have the old note canceled, and to give a new Mote for the amount, 
 to be payable one year from date. The plaintiff demanded a state- 
 ment of his circumstances before entering into this new arrange- 
 ment, and the defendant represented that he was perfectly good, 
 and that his property was clear from incumbrance, with no mort- 
 
58 ON WHAT JUDGMENTS AND IN WHAT ACTIONS. 
 
 gage or anything upon it ; that he did not owe a great deal ; and 
 that the plaintifif's debt was as large as any he had. The defend- 
 ant admits that at that time he owed a debt to one Tilmont of from 
 $17,000 to $20,000 ; that he owed in all the sum of from $60,000 to 
 $70,000; and that his property was not worth to exceed $40,000. 
 * * * The plaintiff was wholly ignorant of these facts, and sup- 
 posed from the statement of the defendant that he was in pros- 
 perous circumstances and solvent, and that he was not in debt to a 
 very large amount; and, relying upon [120] said statements, he 
 consented to cancel the old note and take a new one for the same 
 amount, payable one year from that date. The plaintiff testified 
 that he would not have taken such new note, and so extended the 
 time, had he not relied upon said statements, in ignorance of the 
 facts. * * * 
 
 It was intimated on the argument that the learned judge 
 before whom this case was tried did not doubt that the new credits 
 had been obtained, and that the plaintiffs has been induced to take 
 the new notes, by fraud, but held that by this transaction no new 
 obligation had been incurred or any debt contracted. It is quite 
 clear that the giving of the new note was not contracting a new 
 debt. The debt was the [121] $1,000 in the first £ase and the 
 $5,000 in the other, the same in the new as in the old notes. But 
 it is equally clear that a new contract can be made concerning the 
 same debt. The new notes were new contracts of different terrhs 
 from the old contracts. By the first contracts the debt was due, 
 and by the new ones the debt is not due, and will not be for a con- 
 siderable time to come, or until the time stipulated in the new 
 contracts. Was the defendant bound by these new contracts or 
 new notes ? If so, he was obligated; for that means strictly, and in 
 common parlance, to be bound. The obligation of the old notes 
 was that they should be paid immediately or at once, for they were 
 due. The obligation of the new ones is that they shall be paid in 
 one year, or the longer time stipulated. Both parties were bound 
 by the new notes. The plaintiffs could not enforce their payment 
 until the time stipulated, and the defendant was under an obhga- 
 tion to pay them at maturity, and not before. * * *[i24] 
 
 By the Court: The orders of the circuit court are reversed^ 
 
ATTACHMENT. 59" 
 
 and the causes remanded for further proceedings according to 
 law. 
 
 h. DISPOSITION OF PROPERTY TO DEFRAUD CREDITORS. 
 
 See Jackson v. Burke, aute, p. 52. 
 
 i. DEBTOR ABSCONDING OR NON-RESIDENT. 
 See Matter of Fitzgerald, ante, p. 52. 
 
IV AT WHAT STAGE OF THE CAUSE THE PRO- 
 CESSES ARE AVAILABLE. 
 
 1. Attachment and Garnishment, 60. 
 
 A. How Early the Processes May Issue, 60. 
 
 B. How Late Garnishment May Issue, 62. 
 
 C. How Late Attachment may Issue, 62. 
 
 2. EXECCTIONS, 65. 
 
 A. How Early Execution May Issue, 65. 
 
 a. Before Final Judgment is Entered, 65. 
 
 6. Before Period is Expired During Wlilcb Execution was 
 Stayed, 69! 
 
 B. How Late Execution May Issue, 73. 
 
 1. ATTACHMENT AND GARNISHMENT. 
 A. How Early the Processes May Issue. 
 
 HARGAN V. BURCH. 
 8 Iowa 309. (1859) 
 How Early Process May Issue — Commencement of Action Defined — At- 
 tachment before Service on Defendant — Sunday Process. 
 
 Action commenced by attachment on open account. From 
 judgment for plaintiff defendant brings error. Affirmed. 
 
 David Rarer, for appellant. 
 
 Palmer & McFarland, for appellee. 
 
 [jij]. The Court hy Woodward, J. The defendant's motion" 
 to quash the attachment was overruled, which is the first error 
 assigned. We do not think the objection substantial. Section 
 1717 of the Code, directs the sheriff to note on the original notice 
 the time of its receipt, and § 1663 enacts that the delivery of the 
 notice to the sheriff,- with the intent that it be served immediately, 
 is a commencement of the action. But it will be noticed that this 
 latter provision, is contained in the chapter, 99, which relates to 
 the limitation of actions. The intention here is, that when the pre- 
 cise time of the commencement of an action becomes material, the 
 fact referred to in § 1663, is made to define that time. The filing 
 the petition, or the issuing the notice, might have been made the 
 point, but these might take place without an intent to prosecute the 
 action immediately, so that delivering the notice with intent to be 
 
ATTACHMENT AND GARNISHMENT. 61 
 
 served, is made the time to which to reckon, especially in the ques^ 
 tion of limitation. The action may, however, be fairly considered 
 as begun, for other purposes, and, perhaps, to all common intents 
 and purposes, when the petition is filed. At least, it seems con- 
 sistent and reasonable to consider it so far commenced, as that 
 part of its own process — such as a writ of attachment — may issue j 
 even before the notice. There is no harm, no wrong, effected by 
 this. In truth there is no possible reason why the attachment 
 should not issue before the notice, save the provision that the at- 
 tachment may issue at the commencement, or during the progress 
 of a suit. Section 1846. And the force of this depends upon the 
 construction of to be given it. If sections 1663 and 1846 are to 
 receive a rigid construction, so that there is no "commencement" 
 of an action in any sense, nor to any purpose, but in the delivery 
 of the notice, with intent to be served, then the writ of attach- 
 ment cannot issue before the notice, and in the case at bar, it is 
 irregular, and must be quashed. But such a construction does 
 not appear to us necessary, and the attachment was well enough 
 issued after the petition was filed, and before the notice. [312] 
 This course would compel the plaintiff to serve his notice before 
 the next term of the court ; for, if this should not be done, the at- 
 tachment would then be quashed, of course, and the party suing 
 out would render himself liable on his bond for suing out and levy- ' 
 ing an attachment without prosecuting an action. 
 
 We do not intend to intimate here that there may be any un- 
 necessary delay, but the several steps should appear to be parts of 
 the same transaction and proceedings. 
 
 In the present case, there is another fact which strengthens 
 the position above taken. The attachment was sued on Sunday,, 
 and the affidavit required by statute in such case is made. Those 
 things which were requisite for obtaining the attachment on that 
 day were done, and none others, the party probably supposing that 
 the issuance of process, or notice, would be illegal. This was is- 
 sued, and put into the officer's hands the next day, which was as 
 soon as was practicable. The case stands upon its own facts, and 
 can scarcely serve as a precedent for one in other circumstances. 
 
 Affirmed. 
 
62 AT WHAT STAGE OF THE CAUSE. 
 
 "No court can be opened, nor any judicial business transacted on 
 Sunday, except: * * * 4^ and such otter acts as are provided by 
 law." [Iowa Stat. Rev. 1860, § 2686.] 
 
 "Where the petition states, in addition to the other facts required, 
 that the plaintiff will lose his claim unless the attachment issues and 
 Is served on Sunday, it may be issued and served on that day." [Ch. 
 14, 10 Gen. Assembly; Code, 1873, § 2952.] 
 
 This case is cited and followed in the following cases similar to it 
 ■except that the attachment was not on Sunday. Bell v. Olmstead, 18 
 Wis. 75, HoaglEtnd v. Wilcox, 42 Neb. 138, 60 N. W. 376. See also to 
 the same effect Schuster v. Rader, 13 Colo. 329, 22 Pac. 505; Cosh Mur- 
 ray Co. V. Tuttlch, 10 Wash. 449, 38 Pac. 1134; McDonald v. Alanson 
 Mfg. Co., 107 Mich. 10, 64 N. W. 730; Webb v. Bailey, 54 N. Y. 164. 
 "The chief Utility of an attachment consists in the writ being served 
 in time to prevent a delinquent debtor from placing his property be- 
 yond the reach of the creditor. It would be unfortunate, indeed, if the 
 writ could not issue until the debtor should have notice of .the proceed- 
 ings by service of summons." Schuster v. Rader, supra. 
 
 B. How Late Garnishment May Issue. 
 
 As a proceeding by itself garnishment may issue at any time when 
 «ither attachment or execution might. It may also issue under execu- 
 tion or attachment in most states. 
 
 C. How Late Attachment May Issue. 
 
 PRACHT V. PISTER. 
 30 Kansas 568. (1883) 
 
 How Late Attachment May Issue — Effect of Late Attachment — Special 
 Execution — Levy Defined — When Essential — Collateral Attack. 
 
 Action by Frederick Pracht against John Pister for posses- 
 sion of certain wheat sold plaintiff on process issued on judgment 
 in favor -of plaintiff against defendant. From judgment for de- 
 fendant plaintiff brings error. Reversed. 
 
 Doster & Bogle, for plaintiff. 
 
 /. Hudson Morse, for defendant. 
 
 The Court by Brewer, J. On November 21, 1881, the 
 firm of Pracht, Schutz & Co. recovered a judgment before a 
 justice of the peace against the defendant for the sum of $260.20. 
 Of the validity of this judgment there is no question. In fact, the 
 judgment was rendered upon the personal admission of the de- 
 fendant. Thereafter, without issuing execution and for some 
 inexplicable reason, the plaintiffs filed an affidavit for an order of 
 attachment. The order of attachment was issued and levied upon 
 
ATTACHMENT AND GARNISHMENT. 63 
 
 certain personal property, to wit, fifty acres of growing wheat ; and 
 upon the determination of this attachment proceeding an order of 
 sale was issued commanding the constable to satisfy the judgment 
 by a sale of the property attached. Under this writ, it was sold to 
 one of the plaintiffs in the judgment, and in the presence of and 
 without any objection from the defendant. 
 
 The question now is, whether in a collateral proceeding the 
 validity of this sale can be challenged by the defendant. We have 
 in this state no form of execution prescribed by statute. [572] 
 The statute (Comp. Laws of 1879, ^h. 81, § 139), simply directs 
 what the execution shall contain, and the order of sale contains all 
 the requisites of an execution prescribed by said sectiony except in 
 this respect : that section provides that the process direct the offi- 
 cer to collect the amount of the judgment out of the personal prop- 
 erty of the debtor. This order of sale, reciting a levy of an order 
 of attachment upon the specific property, commands the officer out 
 - of said goods to cause the said judgment to be satisfied. In other 
 words, instead of being a general execution commanding the offi- 
 cer to satisfy the judgment out of any personal property of the de- 
 fendant, it was a special order commanding him to satisfy it out of 
 a certain named property. Upon the process and in the presence of 
 defendant the property was sold. No motion was made to set aside 
 the process or the sale", in fact there Was no direct attack upon the 
 proceedings. The question is whether those proceedings were so 
 irregular and defective that they must be adjudged void, and 
 therefore open to collateral attack. It is conceded that the attach- 
 ment proceedings amounted to nothing. The statute makes no 
 provision for an attachment after judgment, nor indeed, in such 
 case is there any need of such proceedings. The only purpose of 
 an attachment is to seize and hold the property until the claim of 
 the plaintiff can be adjudicated. After judgment, an execution 
 will seize anything that an attachment order would ; so that the lat- 
 ter is unnecessary. Being therefore unauthorized by statute, and 
 unnecessary, it may be disregarded. And the question really comes 
 ■down to this : If the justice issues a writ commanding the officer 
 to satisfy the judgment out of certain personal property, when he 
 ought to have issued a writ commanding him to satisfy it out of 
 
64 AT WHAT STAGE OF THE CAUSE. 
 
 any personal property, is this writ and a sale under it void ? We 
 think not. The greater includes the less. The power to command 
 the seizure and sale of any personal property includes the power 
 to seize and sell certain specific property — Swiggart v. Harber, 5 
 III. (4 Scam.) 2,64; Rockwell v. Jones, 21 111. 279 ; Cornell v. Doo- 
 little, 2 G. Greene (Iowa)38s ; [575] Paine v. Mooreland, 15 Ohio 
 436; Cooley V. Brayton, 16 Iowa, 10; Porter v. Haskell, 11 Me. 
 177. Doubtless such an order is irregular, and could be set aside 
 on motion; but if the defendant makes no objection, permits the 
 sale under it, he should not be permitted thereafter to object that 
 it is void. The defect is not a want of power, but a mere irregu- 
 larity in proceeding ; and in collateral proceedings mere irregular- 
 ities are not sufficient to defeat the title. Paine v. Spratley, 5 Kas. 
 525 ; Freeman on Executions, § 343, and cases cited in the note. 
 
 But it is further objected, that under this order of sale the 
 officer would make no levy ; that the levy under the order of at- 
 tachment was a nullity, and that a levy is indispensable to a valid- 
 sale. A levy means this and nothing more : the taking possession 
 of property by the officer. When there is possession, absolute or 
 constructive, there is a levy, and in any collateral proceeding it is 
 enough that there was such possession. Here the only possession 
 which could have been taken of the property was in fact taken 
 under the order of sale. Now although such taking of possession 
 wasamauthorized, yet the officer could do no more ii he had been 
 authorized ; and having taken such possession, and being in such- 
 possession, he made all the levy that was necessary to uphold his 
 sale. He could have taken no further possession if a general exe- 
 cution had been placed in his hands. Hence we think that all the 
 levy that was indispensable was in fact made. (Freeman on 
 Executions, § 274.) 
 
 We therefore conclude that notwithstanding the defects, they 
 were not sufficient to invalidate the proceedings as against a col- 
 lateral attack. The judgment of the district court must be re- 
 versed, and the case remanded for a new trial. 
 
 All the justices concurring. 
 
 Reversed. 
 
EXECUTIONS. 65 
 
 2. EXECUTIONS. 
 
 A. How Early Execution May Issue. 
 
 a. BEFORE FINAL JUDGMENT IS ENTERED. 
 
 LOCKE V. HUBBARD. 
 9 South Dakota 364, 69 N. W. 588. (1896) 
 
 How Early Execution may Issue — On Order for Judgment — Effect of 
 
 Judge's Signature — Importance of Filing Record and 
 
 Docketing Judgment — Judgment D£fined. 
 
 Action by C. W. Locke against C. W. Hubbard, sheriff of 
 Minnehaha county, for conversion of a stock of drugs. Defend- 
 ant appeals from a judgment in favor of plaintiff and from an 
 order denying a motion for a new trial. Reversed. 
 
 The plaintiff claimed under a chattel mortgage by B. L. Hav- 
 dahl and another. The defendant justified the seizure under an 
 execution on a judgment against B. L. Havdahl, in favor of Noyes 
 Bros. & Cutler. The important question arises on the ruling of 
 the court excluding the judgment and execution from evidence, 
 because no judgment had been entered in the judgment book at 
 the time the execution issued. 
 
 Davis, Lyon &^ Gates for Appellant. 
 
 Joe Kerby for Appellee. 
 
 The Court by Corson, P- J. * * * It is contended by the 
 learned counsel for the appellant that the judgment, when reduced 
 to writing, and signed by the judge, was the final determination 
 of the action, and execution issued thereon was a valid execution, 
 though no judgment had been, in fact, entered in the judgment 
 book, and that the court, therefore, erred in excluding the judg- I 
 ment roll and execution. The learned counsel for the respondent 
 contends that the paper signed by the judge was, in legal effect, 
 simply an order for judgment, and that there can be in this state 
 no legal judgment until one is entered in the judgment book, 
 which will authorize the issuance of an execution, the filing of a 
 judgment roll, or the docketing of the judgment. This is an im- 
 portant question in this state, and has never yet been passed upon 
 by the appellate court. A judgment is defined by § 5024, Comp. 
 
 Laws, as follows: "A judgment is the final determination of the 
 5 
 
66 AT WHAT STAGE OF THE CAUSE. 
 
 rights of the parties in the action." It will be observed that what 
 constitutes the evidence of such judgment, or when or how such 
 determination of the rights of the parties shall become effectual as 
 a judgment, is left unprovided for by that section. It defines a 
 judgment in the language of most of the text-books upon this sub- 
 ject. Section 5095 provides that "judgment upon an issue of law 
 or fact * * * may be entered by the clerk upon the order of the 
 court or the judge thereof." Section 5101 provides that "the clerk 
 shall keep, among the records of the court, a book, for the entry 
 of the judgments, to be called the 'judgment book.' " Section 
 5102 provides: "The judgment shall be entered in the judgment 
 book, and shall specify clearly the relief granted or other determi- 
 nation of the [368] action." It will be noticed that no judgment 
 is mentioned which is to be copied or entered in the judgment 
 book, but that the judgment shall be entered by the clerk in the 
 judgment book. Section 5103 provides that, "immediately after 
 entering the judgment," a judgment roll shall be made up, and 
 what it shall contain. Section 5104 provides that, "on filing the 
 judgment roll," the judgment shall be docketed, etc. And § 51 10 
 provides that "the party in whose, fayor judgment has heretofore 
 been or shall hereafter be given * * * may, at any time within 
 five years after the entry of judgment, proceed to enforce the 
 same by execution." Section 5111 provides: "After the lapse 
 of five years from the entry of judgment, "application can be 
 made to the court, etc. It will thus be seen that the judgment 
 entered in the judgment book is the only judgment mentioned in 
 the statute. What authority, therefore, has this court to hold any 
 paper or record a judgment other than the one entered in the 
 "judgment book?" The judgment there entered is the original 
 judgment, and the only one the law contemplates. Undoubtedly 
 the court, judge, or counsel may very properly prepare a form of 
 judgment for the clerk to enter, but such paper, though signed by 
 the judge or court, is no more the judgment of the court than the 
 one prepared by counsel. It may be, and probably would be held, 
 an order for judgment. If these views are correct, then it follows 
 that the execution was issued before the entry of any judgment 
 upon which it could be based, and before the clerk was authorized 
 
EXECUTIONS. 67 
 
 to issue it, as he is only authorized to issue the execution at any 
 time within five years after the entry of the judgment but not 
 before such entry. 
 
 The counsel for the appellant have cited a large number of 
 authorities, including both text writers and courts, in support of 
 their contention that the judgment prepared and signed by the 
 judge is the judgment of the court; but the statutory provisions 
 on this subject are so various that these decisions throw but little 
 light upon the question, under the peculiar [jSp] provisions of our 
 statute. The statutes of Minnesota upon the subjects of judg- 
 ments are very nearly, if not identically, the same as those in this 
 state, and that court has uniformly held that there is no judgment 
 in that state, other than the one entered in the "judgment book." 
 In Rockwood v. Davenport, 37 Minn. 533, 35 N. W. 377, that 
 court, by Gilfillan, C. J., says: "Gen. St. 1878, Chap. 66, § 273, 
 (Gen. St. 1894, § 5421) reads : 'The judgment shall be entered in 
 the judgment book, and specify clearly the relief granted, or other 
 determination of the action.' By § 275 (§ 5423) the clerk is re- 
 quired, 'immediately after entering the judgment,' to attach and 
 file, as the judgment roll, certain papers, among them a copy of 
 the judgment. Sec. 277 (§ 5425) provides for docketing the judg- 
 ment 'on tiling the judgment roll.' These acts follow in regular 
 sequence. 1st, the entry of the judgment, 2nd, the making up and 
 filing the judgment roll, 3rd, the docketing. To support either a 
 judgment roll or docketing, there must be a judgment entered. As 
 this court said in Williams v. McCrade, 13 Minn. 46 (Gil. 39) : 'If 
 a copy of the judgment constitutes a part of the judgment roll, the 
 original must exist." There can be no judgment capable of being 
 docketed or enforced in any manner till it is entered in the judg- 
 ment book. Until that is done it does not matter that the party is 
 entitled to judgment either by default of defendant, or upon a 
 decision or direction of the court. It has frequently been decided 
 that an order or direction for judgment by the court, or by a ref- 
 eree, is not a judgment so that an appeal can be taken from it. 
 That, to constitute a judgment, it must be entered in the judgment 
 book, as the statute directs, has always been held by this court. 
 Brown v. Hathaway, 10 Minn., 303 (Gil. 238) ; Williams v. Mc- 
 
. 68 AT WHAT STAGE OF THE CAUSE. 
 
 Grade, 13 Min. 46 (Gil. 39) ; Washburn v. Sharpe, 15 Min. 63, 
 (Gil. 43) ; Hodgins v. Heaney, 15 Min. 185 (Gil. 142) ; Thompson 
 Y.Bickford, 19 Min. 17 (Gil. i) ; Hunter v. Stove Co., 31 Min. 505, 
 18 N. W. 645." The supreme court of North Dakota, construing 
 the same provisions of the Code of Civil Procedure now [370] 
 under consideration, in a very exhaustive opinion, takes the same 
 view. Mr. Justice Bartholomew dissented, but upon other points 
 decided by the majority of the court. In re Weher (N. D.) 59 N. 
 W. 523. We find no authority for holding a different view upon 
 statutes containing similar provisions, and hence upon the weight 
 of authority, as well as upon our own view of these provisions, we 
 hold that a judgment, within the meaning of our Code, is a judg- 
 ment entered in the judgment book; and, until one is entered 
 therein, there is no judgment upon which an execution can be 
 legally issued by the clerk. 
 
 It is further contended that such a holding has the effect of 
 giving authority to the clerk, and not the court, to enter the judg- 
 ment. But this is not so, for the reason that, in contemplation of 
 law the court enters the judgment in the judgment book, through 
 its clerk, who merely performs the clerical act of writing the judg- 
 ment in the judgment book, under the direction of the court. 
 
 It is further contended by appellant that the practice in this 
 state has been to regard the judgment, signed by the court and 
 filed, as the judgment in the case, and that a decision at this time 
 will unsettle titles to property sold upon execution. While a 
 court, in making its decision, cannot look to consequences beyond 
 the case before if, we apprehend no such result as counsel suggest 
 would follow, for the reason that evidence aliunde the record could 
 not properly be admitted in a collateral proceeding, if objected to 
 on the trial, and the presumption that the clerk had performed his 
 duty would prevail, unless otherwise clearly shown by the record. 
 * * * {3751 
 
 Upon the evidence before the trial court as disclosed by the 
 record in this court, the plaintiff was ndt entitled to a judgment in 
 excess of $94.24, in any event ; and hence the court erred in direct- 
 ing a verdict in excess of that sum, for which a new trial must be 
 
EXECUTIONS. 69 
 
 granted. The judgment of the county court and the order deny- 
 ing a new trial are 
 
 Reversed, and a new trial ordered. 
 
 To same effect see Mason & Risch Co. v. Killough Music Co., 45 S. 
 C. 11, 22 S. E. 755; Smith v. Trenton D. F. Co., 20 N. J. L. 116; Truett 
 V. Legg, 32 Md. 147; Balm v. Nunn, 63 Iowa, 641; Knights v. Martin, 
 155 111. 486. 40 N. B. 358, Lincoln>v. Cross, 11 Wis. 94. In a few cases 
 entry of judgment by a justice on verdict has been deemed merely min- 
 isterial and failure to enter it not fatal to the execution. Lynch v. 
 Kelly, 41 Cal. 232. Compare Fish v. Emerson, 44 N. Y., 376. Contra 
 Huffman v. Sisk, 62 Mo. App. 398 ; Lowther v. Davis, 33 W. Va. 132, 10 
 S. E. 20. An execution on a mere finding, verdict or order for judg- 
 ment may be enjoined. Sare, v. Butcher, 141 Ind. 146, 40 N. E. 749; 
 Winter v. Coulthard, 94 Iowa, 312, 62 N. W. 732. Validity may be given 
 to the previous execution by an entry of the judgment nunc pro tunc 
 on order of the court. Graham v. L3Tin, 4 B. Monroe (Ky.) 17; Dough- 
 ty V. Meek, 105 Iowa 16, 74 N. W. 744; Drake v. Harrison, 69 Wis. 99, 
 2 Am. St. Rep. 717. But otherwise the entry does not have relation 
 back so as to support the execution (Campbell v. Williams, 39 Iowa 
 646), and it is not lawful for the clerk without order from the court to 
 make such entry. Rockwood v. Davenport, 37 Minn., 533, 35 N .W. 377. 
 
 In Waters v. Harman, 22 Wend. (N. Y.) 566, an execution was held 
 regular though issued before the record was signed and filed, the 
 sheriff being directed to indorse it as received of a subsequent day. 
 And it was so indorsed and levied after the record was actually signed 
 and filed. 
 
 In Small v. M'Chesney, 3 Cowen (N. Y.) 19, a motion to set aside 
 an execution issued at 2 a. m., because the judgment was not signed 
 till 11 a. m. of the same day, was denied because the court could not 
 notice fractions of a day, except to guard against injustice. At com- 
 mon law an execution might issue, as soon as final judgment was 
 signed, provided there was no writ of error pending or agreement to 
 the contrary, (Tidd's Pr. 994); and the same is now true where not 
 changed by the statute. Stevens v. Manson, 87 Me. 436, Schuster v. 
 Rader, 13 Colo. 329, 22 Pac. 505. 
 
 b. BEFORE PERIOD IS EXPIRED DURING WHICH EXECUTION 
 WAS STAYED. 
 
 BACON V. CROPSEY. 
 7 New York (3 Selden) 195. (1852) 
 How Early Execution may Issue — Before Stay Expires — How Objection 
 ^ May be Made and by Whom. 
 
 Appeal by defendant from judgment of the Supreme Court 
 in favor of plaintiff. Affirmed. 
 G. Stow, for appellant. 
 7. Romeyn, for respondents. 
 
70 AT WHAT STAGE OF THE CAUSE. 
 
 The Court by Jezvett, J. The plaintiff brought this suit 
 against the defendant for making a false return, as sheriff of the' 
 county of Rensselaer, to a writ of execution issued out of the court 
 •of common pleas of that county in his favor against the property 
 of H. A. & G. R. Benton, to whom it was directed and delivered 
 to be executed. The complaint alleges, that on the twenty-fifth day 
 of June, 1847, the plaintiff recovered in the late court of common 
 pleas of the county of Rensselaer a judgment against H. A. & 
 G. R. Benton in debt for $4,000, and $32.72 damages and costs, 
 and upon the same day issued and delivered to the defendant then 
 being sheriff of the county, a writ of execution for the collection 
 of $2,032.72, with interest from that day, by virtue of which the 
 defendant on the same day levied upon the property of the defend- 
 ant in the judgment, of sufficient value to satisfy it, but afterwards 
 returned it, certifying that he could not find any property of the 
 \ defendant to satisfy it; by which means, it is alleged, that the 
 plaintiff was prevented from enforcing the payment or collection 
 of $1,542.93 thereof, with interest thereon from the eighth day of 
 September, 1847, ^^^ which the plaintiff claimed to recover of the 
 defendant. * * * [jp^] * * * 
 
 The defence set up by the answer is first, that the execution 
 was issued within thirty days after the rendition of the judgment 
 without the consent of the defendant therein, and without the au- 
 thority of law; second, that there was nothing due from the de- 
 fendant at' the time of issuing the execution, nor was the \_I99\ 
 sum of $1,542.93 then due to the plaintiff as claimed by him; and, 
 third, that the plaintiff had received promissory notes and bills of 
 exchange and demands against third persons to the amount of 
 $1,000, which the defendant claimed should be set off against the 
 plaintiff's demand. 
 
 As to the first branch of the defence, it appeared by the com- 
 plaint that the execution was issued within thirty days after the 
 ^recovery of the judgment. The answer sets up that it was ille- 
 gally issued because the same was so issued without the consent 
 of the defendant therein. The reply controverts this allegation; 
 it says it was legally issued, with the consent of the defendant 
 therein. The judge decided that the plaintiff was not bound to 
 
EXECUTIONS. 71 
 
 prove that the. defendant in the execution consented to its being 
 issued within the thirty days. In that there was no error, for 
 until set aside, although issued without the defendant's consent, 
 the process was valid, and no one could take advantage of such 
 an irregularity but the defendant in the execution. The judge 
 was clearly right in his decision that the defendant was bound to 
 execute it and could not take advantage of the fact in his defence 
 that it was issued within the thirty days. Jones v. Cook, i Cow. 
 309; Ross V. Luther, 4 Cow. 158; The Ontario Bank v. Hallett, 
 8 Cow. 192; Kimball v. Hunger, 2 Hill, 364; Green v. Burnham, 
 3 Sand. Ch. no; Pierce v. Alsop, 3 Barbour Ch. 184; Berry v. 
 Riley, 2 Barb. Sup. C. R. 307; Williams v. Hogeboom, 8 Paige, 
 469 ; Parmelee v. Hitchcock, 12 Wend. 96 ; Stone v. Green, 3 Hill, 
 469; Rider v. Mason, 4 Sand. Ch. 351. 
 
 The distinction is between void and voidable process ; the 
 latter is a justification to the officer, until it is set aside by the 
 party. One strong reason why the sheriff shall not take advan- 
 tage of the error in issuing the process is, that for aught that ap- 
 pears the party does not wish to avail himself of it. Ames v. 
 Webbers, 8 Wendell, 545. But process which is void, the officer 
 is under no obligation to execute, and he may in an action brought 
 against him for refusing to execute it, set up its invalidity. Cor- 
 nell V. Barnes, 7 Hill, 35. [20o\ 
 
 I think the judge was right in holding that the defendant 
 could not be permitted in order to reduce damages, to show that 
 the execution directed the collection of a greater sum than was 
 due to the plaintiff. It was for a sum less than the amount of the 
 recovery, and the complaint alleges that the defendant levied on 
 property of the defendant by virtue of it, sufficient in value to sat- 
 isfy that amount, which fact for the purposes of this suit we have 
 seen is admitted to be true. Clearly that sum with the interest 
 must be taken as the measure of damages which the plaintiff sus- 
 tained by the false return made by the defendant. The exclusion 
 of the evidence offered by the defendant to show that the execu- 
 tion was issued in violation of a stipulation given by the plaintiff 
 to the defendant in the execution, and that they made an assign- 
 ment of all their property for the benefit of their creditors before 
 
 / 
 
72 AT WHAT STAGE OF THE CAUSE. 
 
 the expiration of thirty days after the judgment was docketed, was 
 right. In the first place, if this execution was issued in violation 
 of a stipulation between the parties to it, it was^ merely an irregu- 
 larity of which only the defendant in the execution could take ad- 
 vantage ; and besides this branch of defence is not set up in the de- 
 fendant's answer. I think this judgment should be aiBrmed. 
 
 Gardiner, Johnson, Edmonds and Wells, JJ., concurred. 
 
 Ruggles, Ch. J., and Watson, J., did not hear the argument, 
 and Gridley, J., was absent at the decision. 
 
 Judgment affirmed. 
 
 This decision is supported by the decided weight of authority, 
 though in Massachusetts sale under an execution issued within the 
 prescribed time was held to confer no title. Penniman v. Cole, 8 Mete. 
 496 ; see also Brlggs v. Wardell, 10 Mass. 356. An execution issued be- 
 fore a stay of execution is expired is irregular but not void, and its 
 validity cannot be questioned by another execution creditor. Stewart 
 V. Stocker, 13 S. & R. (Pa.) 199; compare Blaine v. Carter, 4 Cranch, 
 328, 333. Nor collaterally by the judgment debtor himself. Freeman on 
 Ex. §§ 25, 26. Another execution creditor cannot complain that the judg- 
 ment was not publicly read and signed in open court, as required by 
 statute before the execution issued. Jones v. Carnahan, 63 Ind. 229. 
 So of an execution on an award of arbitrators before the time for 
 the appeal expired; Wilkinson's Appeal, 65 Pa. St. 189; so of an exe- 
 cution issued against the estate of a deceased person within the pro- 
 hibited period. Carson v. Walker, 16 Mo. 68. 
 
 In Marvin v. Herrick, 5 Wend. (N. Y.) 109 an execution issued 
 before the record was filed was held to have effect only from the filing 
 of the record and was held properly postponed to executions levied 
 after it but before the record was filed. 
 
 "If the proceedings on the judgment on which process Is founded, 
 are merely erroneous and not void, the ofiicer cannot, for that reason, 
 excuse himself for disobeying the precept, and the true reason I con- 
 ceive to be, that from very wise considerations the court will not thus 
 collaterally and incidentally correct errors. But on the other hand, if 
 it appears that the judgment is void it is otherwise." Albee v. Ward. 
 8 Mass. 86. 
 
EXECUTIONS. 73^ 
 
 B. How Late Execution May Issue. 
 
 MARINER V. COON. 
 i6 Wisconsin 465. (1863) 
 
 How Late Execution may Issue — At Common Law — Under Statutes — 
 Execution on Dormant Judgment — Who Object and How. 
 
 Action to recover real estate. Plaintiff claims under a judi- 
 cial sale on execution on a judgment against the defendant. 
 Plaintiff offered in evidence the execution and return indorsed 
 thereon and the marshal's deed executed pursuant to such sale. 
 Defendant objected to the admission of them on the ground that 
 the execution was not issued within two years after the rendition 
 of the judgment. The circuit court sustained the objection, ex- 
 cluded the evidence, and directed a verdict for the defendant. 
 From the judgment entered thereon plaintiff appeals. Reversed.. 
 
 E. Mariner, in person. 
 
 James Mitchell, for respondents. 
 
 The Court by Dixon, C.J. The question presented by this case 
 is, whether an execution issued upon a dormant judgment, with- 
 out leave of court, is void or only voidable. If void, no sale can 
 be made under it, and the purchaser acquires no title ; but if void- 
 able, the" sale may be valid, notwithstanding the omission to obtain 
 leave. We are of opinion that such an execution is merely void- 
 able, and therefore that no advantage can be taken of the irregu- 
 larity, except in a direct proceeding to set it aside. 
 
 The rule at common law is well known. If the plaintiff 
 failed to take out execution within a year and a day, extended in 
 many of the states, by statute, to two years from the time the judg- 
 ment became final, it could not be regularly issued thereafter, 
 without reviving the judgment by scire facias. The rule was 
 founded upon a presumption that the judgment had been satisfied, 
 which drove the plaintiff to a new proceeding to show that it had 
 not; and yet it was invariably held, that an execution taken out 
 after that time, and without scire facias or judgment of revivor, 
 was not null, but simply irregular. The defendant might, if he 
 desired, interpose and set it aside upon motion ; but if he neglected 
 
74 AT WHAT STAGE OF THE CAUSE. 
 
 to do SO, it was considered an implied admission that the judgment 
 was still in full force. He might waive the irregularity, and thus 
 avoid the expense of a scire facias. See Erwin's Lessee v. Dun- 
 das, 4 How. 79 ; and Doe v. Harter, 2 Carter (Ind.), 252, and the 
 cases cited. 
 
 But the code (§§ 192 and 193 of the original act.now §§ i and 
 2 of ch. 134, R. S.) prescribes a different practice, and it is upon 
 this that the counsel for the defendants chiefly relies. When the 
 •execution in controversy [46p] was issued, the period was fixed 
 at two years from the entry of judgment. It is now enlarged to 
 £ve. Laws of 1861, ch. 140. After that period has elapsed, it 
 is provided that "an execution can be issued only by the leave of 
 the court, upon motion," etc. This language is' said to take away 
 all power, except it be acquired in the mariner prescribed, and to 
 Tender every process issued in contravention of it void for want 
 ■of jurisdiction. Were we to suppose the- legislature to be speak- 
 ing with reference to the question of power, then there is nothing 
 in their language inconsistent with the position of counsel and we 
 might. adopt his views. But we are not at liberty to act upon this 
 supposition. Upon looking to the previous state of the law, and 
 to other provisions of the act, we see very clearly that it was a 
 matter of practice with which the legislature were dealing, a ques- 
 tion as to the form of proceeding which should thenceforth be 
 pursued, and not one which necessarily affected the jurisdiction in 
 ■case the new practice was not complied with. By § 331 of the 
 original act (§ i, ch. 160, R. S.), the writ of scire facias is virtu- 
 ally abolished. The remedies heretofore obtainable in that form 
 may be obtained by civil action under the provisions of the code. 
 But by the particular provision of § 2, ch. 134, above referred to, 
 the remedy by motion to revive a judgment which has become 
 dormant by lapse of time, is substituted. Hence the peculiar sig- 
 nificance of the word "only," upon which the counsel insists so 
 strongly to show a want of jurisdiction. The execution shall be 
 issued only upon motion; otherwise the plaintiff might resort to 
 the remedy by civil action. It appears, therefore, that the conse- 
 quences of a departure from the practice prescribed by statute are 
 the same as they were at common law. It is a simple irregularity, 
 
EXECUTIONS. 75 
 
 which the execution debtor may waive, and which it seems he did 
 
 do in this case. 
 
 Judgment reversed, and a new trial awarded. 
 
 Upon the questions involved In this case the courts are agreed. 
 See review of decisions in Freeman on Executions §§ 29, 30. 
 
V. TO WHOM THE PROCESSES ARE AVAILABLE. 
 
 1. To THE Creditor in the Suit oh Judgment, 76. 
 
 2. To THE Assignee of the Judgment or Demand, 76. 
 
 3. To the Attorney for the Creditor or the Assignee, 79. 
 
 4. To THE Defendant in the Action Who Has Recovered Judgmbni 
 
 Therein, 79. 
 
 5. To the Judgment Debtor, 81. 
 
 6. To the Officers of Court — Clerks, Sheriffs, Jurors, Witnesses, 
 
 &c. — Whose Fises are Taxable, 81. 
 
 7. Unauthorized Issuancf — Objection, How Available — Ratification 
 
 AND Waiver, 84. 
 
 8. Remedies of Person Entitled to Process and Denied It, 85 
 
 A. By Action for Damages, 85. 
 
 B. By Mandamus^ 85. 
 
 9. Form of Application for Process, 85. 
 10. Who May Maintain Replevin, 85. 
 
 1. TO THE CREDITOR IN THE SUIT OR JUDGMENT. 
 
 See the next case, Steele v. Thompson, and Wills v. Chandler, post, 
 p. 81. 
 
 2. TO THE ASSIGNEE OF THE JUDGMENT OR DEMAND. 
 
 STEELE V. THOMPSON, ADM'R. 
 62 Alabama 323. (1878) 
 
 Liability of Clerk for Refusal to Issue Remedial Process on Demand, 
 
 Form of Demand — Assignee's Right to Process, Proof of Title, 
 
 Waiver — Recording Assignment — Parol Assignment — 
 
 Demand by Attorney not of Record. 
 
 Action by Elijah S. Thompson, admr., against Jno. D. Steele 
 and others. From judgment for the plaintiff defendants appeal. 
 Affirmed. 
 
 This is an action against Steele and the sureties on his official 
 bond, as clerk of the circuit court for Greene county, for his re- 
 fusal to issue an alias execution. 
 
 Snedecor, Cockrell & Head, for appellants. 
 
 W. p. Webb and Enoch Morgan, for appellee. 
 
 The Court by Brickell, C. J. * * * The first question is, 
 whether it is the duty of the clerk of a court in which a 
 judgment has been rendered to issue execution thereon, 
 at the verbal request of an attorney of, the assignee 
 of the judgment, the assignment not appearing of record in 
 
ASSIGNEE OF DEMAND. 77 
 
 the court, and no written evidence of it being shown him, 
 nor the attorney having entered himself of record, as an at- 
 torney for the plaintiff in the judgment. Judgments, as well as 
 choses in action, are assignable. The assigment may not clothe the 
 assignee with the legal title, but if it is unqualified, it passes the 
 entire equitable interest, and is an irrevocable authority to employ 
 the name of the assignor in enforcing it, and collecting and receiv- 
 ing the money due thereon. The court in which the judgment 
 was rendered will protect the rights of the assignee, and will pre- 
 vent the assignor from interfering with his control over it. No 
 payment made to the assignor after notice of the assignment is 
 valid, and by no release or admission can he impair the equity of 
 the assignee. — Holland v. Dale, Minor (Ala.), 265; Gayle v. Ben- 
 son, 3 Ala. 234; 2 Brick. Dig. 153, § 312 ; Freeman on Executions, 1 
 § 21. The assignment may be by writing, or by parol, and either, 
 when founded on a sufficient consideration, passes the same rights, 
 and confers the same authority. No entry of it on the records of 
 the court is essential to its validity and operation, nor is there any 
 statute, or rule of the common law, requiring that such entry shall 
 be made. 
 
 An execution in civil actions, is the process by which the debt, 
 or damages, or other things recorded, and the costs adjudged, is 
 obtained. The clerk of the court is charged with the duty of 
 issuing the original, within a certain number of days after the 
 adjournment of the court. If satisfaction is not obtained by the 
 original, the party interested has the right to an alias, and a plu- 
 ries, until satisfaction is obtained. These writs it is the duty of 
 the clerk to issue on application ; and his failure is a breach of his 
 official bond, which binds him to the performance of all the duties 
 required of him by law. The application may be oral or, written. 
 If the clerk deems it necessary for his protection, he may require 
 that it be reduced to writing. But if it is oral, and [j.?(S] he 
 makes no objection on that ground when it is made, he cannot sub- 
 sequently excuse his failure to comply with it, on the ground that 
 it was not in writing. If he had objected, the cause of objection 
 would have been easily removed; but not then objecting, and 
 tacitly accepting the application as sufficient, it would be gross 
 injustice to suffer him to excuse his failure from which injury has 
 
78 TO WHOM AVAILABLE. 
 
 resulted, because of the manner of the application. So, if the 
 application is made by a party having the real interest in the judg- 
 ment, entitled to control it, though his interest and authority may 
 not appear of record, he may demand some evidence of the inter- 
 est or authority, if he doubts it. But if he makes no such demand 
 — if by his silence he recognizes the interest and authority, it 
 would approach a fraud, if he was heard subsequently to say in 
 excuse for his failure to issue the writ, when injury had resulted, 
 that no evidence of the interest or authority was shown him. As 
 assignee of the judgment against Kirksey, the appellee had full 
 authority over it. It was his right to demand execution thereon in 
 the name of the plaintiff, and it was the duty of the clerk to comply 
 with the demand when it was made. There is no particular form 
 required, in which the demand should be communicated to the 
 clerk, and if there had been, the form could have been waived by 
 the clerk, and it was waived when he did not object to the form in 
 which it was made. The assignee may control the judgment 
 through an attorney, or an agent, and the demand or instructions 
 of the attorney or agent, are of the same force as if they had pro- 
 ceeded from him personally. 
 
 It is enough to say in reference to the remaining question, 
 there was no evidence the judgment was satisfied before the 
 demand of the issue of execution. On the contrary, the evidence 
 seems to us, undisputable, that it was unpaid, and the just infer- 
 ence is, the clerk knew the fact. 
 
 Let the judgment be affirmed. 
 
 It has been held that a judgment in favor of an infant, suing by his 
 next friend, having been affirmed on appeal without mentioning the 
 next friend, an execution subsequently issued will not be quashed be- 
 cause it follows the affirmed judgment. Thomason v. Gray, 84 Ala., 559. . 
 
 That an assignee may have execution in the name of judgment 
 creditor, but cannot have execution in his own name. See Reld v. 
 Ross, 15 Ind. 265; Fiske v. Lamoreaux, 48 Mo., 523; Owens v. Clark, 78 
 Tex., 547. Intimated that clerk should indorse on the execution, that it 
 is for benefit of assignee, Reid v. Ross, supra, but see Owen v. Clark, 
 supra. That the purchaser may have execution without first bringing 
 a scire facias, see Corriell v. Doolittle, 2 G. Greene, (Iowa) 385. 
 
 In Louisiana it has been held that one purchasing a judgment on 
 execution could not have execution on it, but only had a right to sue 
 the judgment debtor. Fluker v. Turner, 5 Martin, N. S. (La.) 707. 
 
 Held that assignee of a claim could not attach on the ground that 
 
DEFENDANT. 79 
 
 the Obligation was fraudulently contracted, for that is a personal mat- 
 ter between the original parties. Cheshire Provident Inst. v. Johnston, 
 Fed. Cas. No. 2659. 
 
 As a general rule, assignees of demands may make use of any 
 remedy to collect them that would be available to the assignor, includ- 
 ing attachment and garnishment. Fuller v. Smith, 58 N. C. (5 Jones 
 Eq.) 192; Crippen v. Fletcher, 56 Mich., 388, 23 N. W. 56; White v. 
 Simpson, 107 Ala., 386, 18 South, 151. 
 
 That a foreign administrator must comply with the law of the 
 state where the execution is to be issued, before an execution is valid; 
 see Jackson v. Scanland, 65 Miss., 481. 
 
 3. TO THE ATTORNEY FOR THE CREDITOR OR THE ASSIGNEE. 
 
 See the last preceding case, Steele v. Thompson, and Wills v. 
 Chandler, post, p. 81. 
 
 The principle was laid down in Brackett v. Norton, 4 Conn. 517, 
 that the general powers of an attorney, on principles of the common 
 law, do not terminate when he has prosecuted the suit in which he is 
 retained to final judgment and execution; but he may give directions 
 concerning the levy of the execution, and when the fruits of it are ob- 
 tained, receive the money, and acknowledge satisfaction. 
 
 That the authority of an attorney who has_obtained a judgment 
 for his client, continues in force until such judgment is satisfied is 
 held, in Gray v. Wass, 1 Maine, 257. 
 
 4. TO THE DEFENDANT IN THE ACTION WHO HAS RECOVERED 
 
 JUDGMENT THEREIN. 
 
 ESLER V. KENT CIRCUIT JUDGE. 
 io8 Michigan 543, 66 N. W. 485. (1896) 
 
 Right of Successful Defendant to Process to Enforce his Judgment — 
 
 Construction of Statutes Giving, to Plaintiff only 
 
 Process Unknown to Common Law. 
 
 Mandamus by Alexander D. Esler to compel Allen C. Adsit, 
 circuit judge, to set aside an order vacating a judgment recovered 
 by Esler. Granted. 
 
 Earle & Hyde, for relator. 
 
 Hatch & Wilson, for respondent. 
 
 The Court by Montgomery, I. This application for man- 
 damus presents the question of whether a defendant who has 
 recovered a judgment against the plaintiff may sue out a writ of 
 garnishment, based on such judgment, against a third party. The 
 circuit judge held that the defendant is not entitled to the remedy. 
 The statute (3 How. Stat. § 8058) reads as follows : "That in all 
 
:80 TO WHOM AVAILABLE. 
 
 personal actions arising upon contract, express or implied, * * * 
 ■and in all cases where there remains any sum unpaid upon any 
 judgment or decree * * * if the plaintiff, his agent or attorney, 
 shall file with the clerk, * * * \.544\ an affidavit stating * * * 
 ■etc., a writ of garnishment shall be issued," etc. 
 
 The legislative intent, it must be conceded, is not made as 
 •clear as might be desired, and we are cited to no case which can be 
 said to rule this. It is safe to assume, in view of the end aimed at 
 by the legislation, that it was not the intent to afford to one party 
 a remedy not open to the other. The ambiguity arises out of the 
 fact that the provision for remedy on judgment was inserted in a 
 section which previously provided for the suing out of the writ at 
 the commencement of suit, and the provision for the making 
 of the affidavit by the plaintiff was left unchanged. Literally con- 
 stn:ed, this provision would render nugatory the remedy given on 
 a decree ; for, strictly speaking, there is no party in chancery desig- 
 nated as "plaintiff." The construction contended for by respond- 
 ■ent would also limit the general language giving the remedy in all 
 cases where any sum remains unpaid on any judgment or decree. 
 We think it not unwarranted to assume that by the word "plain- 
 tiff," as here used, was meant the moving party or suitor in the 
 garnishment proceeding. A question having some analogy was 
 presented to the supreme court of Massachusetts. The statute 
 provided that after the rendition of a judgment in a civil action, if 
 the execution had not been satisfied, the court or justice, upon 
 petition of defendant, {545'] might order a stay or supersedeas. 
 It was held that the word "defendant," as used, was clearly 
 intended to refer to the person against whom the judgment sought 
 to be recovered was rendered, and who, as petitioner, asked for a 
 stay of execution, and not to the defendant in the original action. 
 ■Leavitt v. Lyons, 118 Mass. 472. See, also; Westcott v. Booth, 49 
 Ala. 182; Fort Street Union Depot Co. v. Backus, 103 Mich. 564. 
 It has been held that, in garnishment statutes, the word "plaintiff" 
 should be construed to include the assignee, who is the owner of 
 the judgment Ditgas v. Mathews, gGa. 510. We are of opinion 
 that it was intended to give this remedy to the person who recov- 
 ^«red judgment or decree, whether he be plaintiff, complainant, or 
 
OFFICERS OF THE COURT. 81 
 
 defendant, and that the word "plaintiff," as used in the statute, 
 
 must be construed to mean the party moving in the garnishment 
 
 proceeding. 
 
 Writ granted. 
 
 5. TO THE JUDGMENT DEBTOR. 
 
 A judgment defendant, having procured an execution to issue 
 against himself, paid the sheriff the amount in state bank paper and 
 received a discharge. The paper proving worthless the plaintiff asked 
 to have the satisfaction set aside which the court allowed, saying: 
 
 "It may be of the utmost importance to the plaintiff to know when 
 his execution is in the hands of an officer, that he may give such in- 
 structions as are consistent with his rights. He may desire to bid for the 
 property levied on, so as to realize his judgment and prevent the prop- 
 erty from being bought in at a sacrifice and his judgment left unpaid. 
 To give to the defendant or any third person the right of controlling an 
 execution without the privity of the plaintiff, would establish a rule 
 full of mischief which might lead to the practice of the grossest fraud." 
 Osgood V. Brown, Preem. (Miss.) 392. 
 
 6. TO THE OFFICERS OF COURT— CLERKS, SHERIFFS, JURORS, 
 WITNESSES, &c.— WHOSE FEES ARE TAXABLE. 
 
 WILLS V. CHANDLER. 
 I McCrary (United States Circuit Court) 276, 2 Fed. Rep. 273. (1880) 
 
 Sheriff's Deed, Validity, Sale on Execution after Satisfaction of Judg- 
 ment — Power of Judgment Creditor to Discharge Land from 
 Judgment Lien without Payment of Officer's Fees — 
 Who May Have Execution Issued. 
 
 Bill in equity by Wills against Chandler and Paxtoti to quiet 
 title to certain lands in Omaha. Decree for plaintiff. 
 
 Nuckolls, a judgment debtor, sold land subject to the judg- 
 ment, and the purchaser, Kellogg, thereupon paid the amount 
 of the judgment to the judgment creditor's attorney, Meredith, 
 who thereupon gave him a receipt in full for the amount of the 
 judgment, interest and costs, each understanding that the other 
 was to pay the fees of the clerk of the court. The fees being paid 
 by neither, the clerk, Chandler, who was now out of office, pro- 
 cured an execution on the judgment from his successor, and had 
 the land sold thereon by the sheriff, and Chandler purchased it at 
 the sale. Wills claims by purchase from Kellogg, and Paxton 
 through Chandler and the deed executed to him by the sheriff. 
 
82 TO WHOM AVAILABLE. 
 
 Kennedy & Gilbert, for plaintiff. 
 
 G. W. Ambrose and /. M. Wool-worth, for defendants. 
 
 McCrary, Circuit Judge. * * * The validity of the 
 sheriff's sale, under which defendants claim, is attacked first upon 
 the ground that the judgment was satisfied by the plaintiff therein, 
 and that, therefore, the sale was void. The proof clearly shows 
 that the attorney for the plaintiff executed to Kellogg a receipt in 
 full for the judgment, interest and costs. This receipt may be ex- 
 plained by parol proof, and on explanation it is shown that the 
 costs due Chandler, though receipted for, were not in fact paid. 
 It remains, however, clear from the evidence that Meredith and 
 Kellogg both intended that the receipt should satisfy the judgment 
 and remove the encumbrance, notwithstanding the non-payment 
 of Chandler's costs. Had they the power to accomplish this? I 
 think it clear, under the authorities, that in the absence of statu- 
 tory regulation only the plaintiff in a judgment, or his attorney 
 or agent, has the power either to satisfy it, or direct its enforce- 
 ment by execution. In this case Chandler (the clerk) was not 
 the plaintiff, nor was he a party to the judgment. There was, in 
 fact, no judgment for any particular sum as costs. 
 
 Johnson v. Anderson, 4 Wend. 474, is in point. That was, 
 like the present, a case where the judgment had been paid except 
 certain costs, and the sheriffs to whom the costs were due under- 
 took to sell property on execution for the purpose of collecting 
 them. The court said: "It is not denied that the judgment was 
 satisfied before the sale (except as to the sheriff's fees on the exe- 
 cution) by a settlement between the parties. ****** 
 The sheriff had no right to sell for the purpose of collecting his 
 fees after due notice of the settlement and discharge of the judg- 
 ment. The sheriff has no interest in the judgment which will 
 authorize him to interfere with or control any settlement or agree- 
 ment which the parties may think proper to make. His fees are 
 no part of the judgment. They are but an incident to it, and if the 
 judgment itself is satisfied or discharged he must look to the 
 plaintiff and his attorney for his fees. He cannot collect them 
 from defendant by a sale of his property." And it was held that 
 the purchaser at the sale in that case took nothing. To the same 
 
• OFFICERS OF THE COURT. 83 
 
 effect see Leivis v. Phillips, 17 Ind. 108, and Hampton Ex parte, 
 2 Gr. (Iowa), 137. 
 
 In the absence of statutory regulation the clerk has no author- 
 ity to issue execution without the direction of the plaintiff or his 
 attorney. Herman on Executions, 66. This must be upon the 
 ground that the clerk is not a party to the judgment, and has no 
 control over it. 
 
 It is said in answer to these suggestions that Chandler ob- 
 tained authority from the attorney of the judgment plaintiff to 
 issue the execution. If this be so, it does not help the defence, 
 because that attorney had previously given Kellogg a satisfaction 
 in full of the judgment, upon which satisfaction the latter was 
 relying for the security of his title. To say that the attorney for 
 the judgment plaintiff could execute a valid release to Kellogg, 
 and then, without notice to him, cancel it, and authorize Chandler 
 to issue execution and sell Kellogg's land, would be to sanction a j 
 gross fraud. 
 
 In selling property under an execution a sheriff acts by virtue 
 of a power, and if the power does not exist no title passes. Car- 
 penter V. Stillwell, II N. Y. (i Kernanj, 61; Laval v. Rowley, 
 17 Ind. 36. 
 
 My conclusion is that at the time of the settlement between 
 Kellogg and Meredith the latter, as agent for the plaintiff in the 1 
 judgment, intended to and did cancel and satisfy the judgment, 
 and remove the lien from the land in question. The judgment 
 being satisfied, the sale was void and no title passed. * * * 
 
 Decree for plaintiff in accordance with the prayer of the bill. 
 
 That officers of court, or witnesses to whom fees are due, have not 
 the power to order execution on a judgment owned by another, see Ex 
 Parte Hampton, 2 G. Greene, (Iowa) 137. 
 
84 TO WHOM AVAILABLE. 
 
 7. UNAUTHORIZED ISSUANCE— OBJECTION, HOW AVAILABLE— 
 —RATIFICATION AND WAIVER. 
 
 CLARKSON V. WHITE and ARNOLD. 
 4 J. J. Marshall (Kentucky) 529, 20 Am. Dec. 229. (1830) 
 
 Execution without Autliority — Burden of Proof — How Objection Avail- 
 able — Who Liable — Ratification. 
 
 Bill by Clarkson, as a surety on a replevin bond, against 
 White and Arnold, to enjoin a fieri fdcias on the bond and for 
 other relief. From a decree dismissing the bill, complainant ap- 
 peals. Affirmed. 
 
 The injunction was asked because Arnold, the clerk, issued 
 the execution without authority from Mrs. White, the judgment 
 creditor. 
 
 Mills and Brown, for plaintiff. 
 
 Hanson, foi; defendant. 
 
 The Court by Robertson, C. I. * * * There was no sem- 
 blance of equity against Mrs. White. She had done nothing 
 which could have the effect of releasing the plaintiff from the 
 judgment; and the last execution was credited with all except the 
 interest. [530] Nor does it appear that Arnold acted without 
 authority. But if he did so act in issuing the execution, its en- 
 forcement should not, on that ground alone, be enjoined, because 
 Mrs. White, the creditor, approved and ratified the act of the clerk 
 in issuing the execution. As against Arnold, the clerk, there is no 
 equity in the bill. i. Because his act (in issuing the execution) 
 was not illegal. 2. If it be illegal, the remedy is exclusively legal 
 as against him. * * * 
 
 Wherefore, the decree dissolving the injunction and dismiss- 
 ing the bill is affirmed. * * * 
 
 "Perhaps an execution defendant could not complain when a clerk 
 issues [an execution] without authority of the plaintiff, if the plaintiff 
 afterwards acquisces in it, and ratifies the act; nor could the plaintiff, 
 under such circumstances, object that the clerk had no authority to 
 issue the execution." Lewis v Phillips, 17 Ind. 108, 79 Am. Dec. 457; 
 see also Wells v. Bower, 126 Ind. 115; 22 Am. St. Rep. 570; Lerch v. Gal- 
 lup, 67 Gal. 595. 
 
 "Issuing execution without request is a mere irregularity and one 
 who claims in the character of a judgment creditor cannot avail him- 
 self of a mere irregularity to defeat a consummated sale. It is, as a 
 
WHO MAY REPLEVIN. 85 
 
 general rule, only the execution defendant who can avail himself of an 
 irregularity, 6ven by a proceeding instituted before the sale is made." 
 Johnson v. Murray, 112 Ind. 154; 2 Am. St. Rep. 174. 
 
 8. REMEDIES OF PERSON ENTITLED TO PROCESS AND DE- 
 
 NIED IT. 
 
 A. By Action for Damages. 
 
 See Steele v. Thompson, ante, p. 76. 
 
 B. By Mandamus. 
 
 If a justice of the peace refuses to issue execution on his judg- 
 ment, after being requested by the plaintiff to do so, a mandamus will 
 be granted to compel him. Hamilton v. Tutt, 65 Gal. 57; Terhune v. 
 Barcalow, 11 N. J. Law 48; Laird v. Abrahams, 15 N. J. L. 22. So if the 
 judge refuse to enforce his judgments or decrees. Stafford v. Union 
 Bank, 17 How [U. S.] 275. 
 
 9. FORM OF APPLICATION FOR PROCESS. 
 
 See Steele v. Thompson, ante, p. 76. 
 
 10. WHO MAY MAINTAIN REPLEVIN. 
 
 ENTSMINGER v. JACKSON. 
 73 Indiana 144. (i88o') 
 
 Who May Maintain Replevin, Necessary Title — Pleading — General 
 Title, Right of Possession. 
 
 Action by Entsminger et al. against Jackson et al. to recover 
 possession of 3,000 feet of walnut lumber alleged to be 
 worth $135. The complaint alleged in substance that plaintififs 
 were "the owners of the property mentioned in the first paragraph 
 of this complaint, by purchase from one John Nelson, and that the 
 same was levied on by the defendants" on an execution against 
 said John Nelson and another after said purchase. Defendants 
 demurred to the complaint for want of sufficient facts. The court 
 overruled the demurrer and on trial judgment was rendered for 
 plaintiffs, and from this judgment defendants appeal, assigning 
 error in overruling said demurrer. Keversed. 
 
 The Court by Howk, J. * * *An action for the recovery of 
 personal property is undoubtedly a possessory action, wherein a 
 mere possessory right may, and often will, prevail against an ab- 
 solute title, where the absolute title to personal property, and the 
 right to the possession thereof, become separated and are. held by 
 
86 TO WHOM AVAILABLE. 
 
 different parties. Kramer v. Matthews, 68 Ind. 172, on page 176. 
 For this reason a complaint in such an action, alleging merely that 
 the plaintiff is the owner of certain personal property, and not that 
 he is entitled to the possession thereof, and containing no allega- 
 tion that the same either has been wrongfully taken, or is unlaw- 
 fully detained, by the defendant, must be held bad, we think, on a 
 demurrer thereto for the want of sufficient facts. 
 
 In the case at bar, the appellees failed to allege, in the second 
 paragraph of their complaint, as will be seen from our summary • 
 thereof, either that they were entitled to the possession of the per- 
 sonal property sued for, or that such property had been wrong- 
 fully taken, or was unlawfully detained, by the appellants, or 
 either of them. * * * 
 
 Reversed. 
 
VI AGAINST WHOM THE PROCESSES ARE AVAIL- 
 ABLE. 
 
 Persons Under Legai^ Disability — Femes Covert, Infants, and Per 
 SONS NoN Compos Mentis, 87. 
 
 A. As Principal Debtors, 87. 
 
 B. As Oarnishees, 89. 
 
 Guardians', Executors, Administrators, and the Property Thht 
 Hold as Such, 91. 
 
 A. As Principal Debtors, 91. 
 
 a. The Individual Property of the Executor, Administrator or 
 
 Guardian, 91. 
 6. The Property of the Estate or Ward, 94. 
 
 B. As Garnishees, 97. 
 
 Parties to the Action as Garnishees, 97. 
 
 A. Plaintiffs, 97. 
 
 B. Defendants, 102. 
 
 Quasi Public Corporations, 104. 
 
 A. As Principal Debtors, 104. 
 
 B. As Garnishees, 112. 
 Public Corporations, 120. 
 
 A. As Principal Debtors, 120. 
 
 B. As Garnishees, 123. 
 
 State and Nation.il Governments, 128. 
 
 A. As Principal Debtors, 128. 
 
 B. As Garnishees, 132. 
 
 Against Whom Replevin Libs, 134. 
 
 1. PERSONS UNDER LEGAL DISABILITY— FEMES COVERT, IN- 
 FANTS, AND PERSONS NON COMPOS MENTIS. 
 
 A. As Principal Debtors. 
 
 DILLON V. BURNHAM. 
 43 Kansas yy, 22 Pac. 1016. (1890) 
 
 Infant's Liability on Contracts, Effect of his Conduct Claiming Age — 
 Right to Enforce Judgment Against Him by Execution. 
 
 Action by Burnham, Hanna, Hunger & Co. against Henry J. 
 Dillon. From judgment for plaintiffs on special verdict defend- 
 ant brings error. Affirmed. 
 
 Dawson Smith, for appellant. 
 
 W. A. McCartney, J. M. Thomas and /. D. McFarland, for 
 appellees. 
 
 The Court by Johnson, J. There are two questions presented 
 for our consideration: First, was Dillon bound by the contract 
 
88 AGAINST WHOM AVAILABLE. 
 
 which he made? And second, could a judgment tased thereon be 
 enforced against his property? In the absence of the evidence, 
 we must assume that there was sufficient testimony to sustain the 
 special findings and general verdict of the jury. From the findings, 
 it appears that Dillon was only twenty years of age when the goods 
 were purchased and the contract in question was made by him, and 
 that he was still a minor when the trial occurred. Although the 
 attachment proceeding was based on the alleged fraudulent pur- 
 pose and conduct of Dillon, it is found that no misrepresentations 
 as to his age were made by him for the purpose of obtaining 
 credit. It is found, however, that prior 'to the purchase of the 
 merchandise he was engaged in business as an adult, had bought 
 and sold land as such, had represented to the governor that he was 
 twenty-one years old, had paid poll-tax as an adult, and had exe- 
 cuted deeds and mortgages as an adult ; and further, that the firm 
 from whom the goods were purchased had good reason to believe 
 from his having been engaged in and carried on business as an 
 adult, that he was legally capable of contracting. * * * We think 
 the contract was binding upon Dillon, and that the court ruled 
 correctly in rendering judgment against him. * * * 
 
 The second point raised by plaintiff in error must also be 
 overruled. Where the contracts of a minor are binding upon him 
 and may be reduced to judgment, they certainly may be enforced 
 by appropriate writs or proceedings. It would be idle to 
 authorize the enforcement of a contract and the rendition of a 
 judgment if such judgment could not be made effective when 
 given. As the courts have authority to require a minor who can- 
 not disaffirm to appear and answer, and to be bound by judgment 
 rendered against him, it follows that, in the absence of statutes to 
 the contrary, writs of attachment, or other appropriate proceed- 
 ings to require a satisfaction of the judgment, may be obtained as 
 in other cases. (Freeman on Executions, § 22.) The judgment 
 of this district court will be 
 
 AMrmed. 
 
 Scudder, J. "It was next objected, that the writ should have been 
 quashed on the defendant's motion, because it could not be issued 
 against a female debtor. This point was based upon PuUinger v. Van 
 Bmburgh, 1 Harr. [N; J.] 457. * * * As the case referred to held that 
 
PERSONS UNDER DISABILITY. 89 
 
 a female deBtor could not be proceeded against by writ of attachment, 
 because she could not be held to ball in a civil suit, females being ex- 
 empt from Imprisonment or arrest for debt, it evidently appears that 
 the legislature, soon after this decision, and with it in mind, relieved 
 females from the liability to afrest under proceedings in attachment, 
 and, in the same statute, enacted, that a writ of attachment might be 
 be issued against them." Davis v. Mahany and Grover, 38 N. J. L. (9 
 Vroom) 104. 
 
 It has been held that "if a personal suit can be maintained at law 
 against a lunatic, there is no reason why a proceeding against his 
 estate by attachment is not valid." Weber v. Weitling, 18 N. J. Eq. (3 
 C. E. Green), 441. 
 
 It appearing that the defendant was insane when he left the state, 
 attachment against him upon the ground of his departure will be set 
 aside. Chambers & McKee Glass Co. v. Roberts, 4 App. Div. (N. Y.) 20. 
 
 Colt, J. "The property of a person under guardianship may be 
 taken on execution issued against him. It may, therefore, be attached 
 on mesne process in all the usual modes, including the trustee process. 
 The remedy to recover a debt against the ward by suit upon the guar- 
 dian's bond is not exclusive." Simmons v. Almy, 100 Mass. 239. 
 
 "It would be a contradiction of terms to say that all persons may 
 be bound by judgments, and then to declare that some persons are ex- 
 empt from having executions issued against them. * * * in other 
 words, when a judgment is valid against a defendant, an execution 
 based upon it must, unless expressly forbidden by statute, be equally 
 valid. Execution may, therefore, go against a lunatic and also against 
 a married woman." Freem. on Ex. § 22. 
 
 B. As Garnishees. 
 
 WILDER V. ELDRIDGE. 
 
 17 Vermont 226. (1845) 
 
 Infant Garnishee — As Debtor — As Custodian — Effect of Payment or 
 
 Delivery after Service — Appointing Guardian Ad Litem — 
 
 Becoming of Age Before Trial. 
 
 Trustee process by Wilder & Snow against Truman S. Eld- 
 ridge, principal debtor, in which Daniel Wright and Samuel S. 
 Wright were summoned as trustees. Plaintiffs except to judg- 
 ment discharging S. S. Wright. Affirmed. Plaintiff sought to 
 charge S. S. Wright because he had purchased a horse of Eldridge 
 for $75 and given his note in payment. 
 
 Woodhridge and /. Pierpont, for plaintiffs. 
 
 E. D. Barber, for trustee. 
 
 The Court by Bennett, J. The only question in this case 
 arises upon the disclosure of Samuel S. Wright. It is argued, 
 that, upon general principles, a minor can in no case be charged 
 
 /' 
 
t 
 
 90 AGAINST WHOM AVAILABLE. 
 
 as trustee by means of the trustee process. It would seem, if there 
 is an attempt to charge him upon the ground of having in his 
 hands the credits of the principal debtor, that the plea of infancy- 
 should avail the trustee, equally as if sued directly by the principal 
 debtor ; but if the minor is liable to the principal debtor for neces- 
 saries, no good reason is perceived why he may not be charged as 
 his trustee, to the extent of such liability, by means of the trustee 
 process. 
 
 So, if he has the specific goods and chattels of the principal 
 debtor in his hands, we see no sufficient reason, why they should 
 not be reached by the trustee process. The statute provides that 
 every person, who has the goods, effects and credits of the prin- 
 cipal debtor intrusted to, or deposited in, his hands, may be sum- 
 rrioned as trustee, and the goods, effects and credits be attached, 
 and held to respond the judgment, that shall be recovered against 
 the principal debtor. The general words of the statute include mi- 
 nors, though it is true the court might, upon sufKcient reasons, re- 
 strain [2^0] these general words, by holding that minors did not 
 come within the equity of the statute. 
 
 But we do not apprehend that there is any good reason for 
 restraining these general words. The attaching creditor takes the 
 place of the owner of the property attached in the hands of the 
 trustee. No new liabilitiy is imposed upon the trustee, and he has 
 only to deliver the property to the officer, who shall have the execu- 
 tion, instead of delivering it to the principal debtor. If he refuses, 
 he is liable to the attaching creditor, to the value of the goods. The 
 minor would be liable, to the extent of the value of the goods, to 
 the owner of them, provided there had been no attachment. In 
 such case the minor stands in the nature of a trustee, and holds the 
 goods as such, and should, upon common principles, be held liable. 
 
 But a minor, when sued, is not capable of conducting the suit ; 
 and it is as necessary that he should defend by guardian in- a trus- 
 tee process, so long as he is a minor, as in other cases. To give 
 the trustee process the effect of an attachment of the goods, against 
 the minor, from the date of the service, his guardian, if he had one, 
 should have been cited in. If this is not done, the plaintiff must, 
 at his peril, apply to the court to have a guardian ad litem ap- 
 
LEGAL REPRESENTATIVES AND THE ESTATES. 91 
 
 pointed. But in the present case, as the trustee became of age 
 before the disclosure was made, there was, at that time, no occasion 
 for the appointment of a guardian. The property, however, had, 
 before this, and while the trustee was a minor, been given up to 
 the principal debtor, in pursuance of the original contract. 
 
 Had the trustee, in this case, been of age, and had elected, 
 after the service of the trustee process, to rescind the contract and 
 demand his note, it would seem as if he would thereby be excused 
 from delivefmg the property to the principal debtor, but should,, 
 from that time, treat it as in the custody of the law. But as, in this 
 case, the property was given up by the trustee, while under age, 
 though after the service of the process, and while he was incapable 
 of conducting his defence, and, in contemplation of law, not under- 
 standing- his rights, or liabilities, we cannot consider the attach- 
 ment, at that time, of such binding force against him as to render 
 him liable at all events as trustee in this action. [231] 
 
 The judgment of the county court, discharging this trustee, is 
 affirmed with costs. 
 
 2. GUARDIANS, EXECUTORS, ADMINISTRATORS, AND THE 
 PROPERTY THEY HOLD AS SUCH. 
 
 A. As Principal Debtors. 
 
 a. THE INDIVIDUAL PROPERTY OF THE EXECUTOR, ADMIN- 
 ISTRATOR OR GUARDIAN. 
 
 KENISTON V. LITTLE. 
 30 New Hampshire 318, 64 Am. Dec. 297. (185s) 
 
 Liability of Sheriff Acting under Process — Juidgments against Adminis- 
 trators — Descriptio Personae — Wliose Property Liable. 
 
 An action of trespass byKeniston against Little, deputy sheriff 
 of Merrimac county, for taking certain cattle of the plaintiff under 
 the execution mentioned in the opinion. Case submitted to this 
 court on agreed facts. Judgment for defendant. 
 
 ButterHeld & Hamlin, for the plaintiff. 
 
 N. B. Bryant, for the defendant. 
 
 The Court by Bell, J. The defendant, a deputy sheriff, took 
 certain chattels, property of the plaintiff, upon an execution in fa- 
 vor of Knowlton against him, and sold them, and applied the pro- 
 
92 AGAINST WHOM AVAILABLE. 
 
 ceeds in discharge of the execution. The plaintiff brings against 
 the officer an action of trespass, and the question is, if the latter 
 can justify himself under this execution. 
 
 And first, it is said, in behalf of the plaintiff, that the judg- 
 ment recited in the execution being "against Benjamin C. Keniston 
 of, etc., administrator of the estate of James M. Knowlton, late of,' 
 etc., deceased," is a judgment against the plaintiff, in his capacity 
 of administrator, and the precept to cause the sum recovered "to be 
 levied of the goods, [322] chattels, or lands of the said debtor," 
 is limited to the goods, chattels or lands of the debtor, as adminis- 
 trator of Knowlton. If this view is correct, then it is clear that 
 the officer cannot justify a levy upon the private estate of the ad- 
 ministrator, because his precept gave him no authority to levy 
 upon anything but the estate of the intestate. 
 
 At common law, the judgment de bonis testatoris is rendered 
 ■"that the said John recover against the said Jane, executrix as 
 
 aforesaid, pounds, etc., to be levied of the goods and 
 
 chattels, which were of the said J. D., deceased, at the time of his 
 death, in the hands of said Jane to be administered." S Went. PI. 
 414; Imp. P. C. P. 483; 4 Lill. Ent. 475, 478, 504; 10 Went. PI, 
 458; Piper V. Goodwin, 23 Me. 251; Atkins v. Sawyer, 1 Pick. 
 (Mass.) 353 ; Merritt v. Seaman, 6 N. Y. (2 Seld.), 168. A simi- 
 lar form of entry is used in case of a judgment against an heir. 2 
 Lill. Ent. 504. And a like form was adopted in the case of a judg- 
 ment to be levied upon property attached, where a subsequent 
 bankruptcy had been pleaded. Kittridge v. Warren, 14 N. H. 509. 
 
 By the case of Pillshury v. Hubbard, 10 N. H. 224, it appears 
 that such has been the practice in this state, and though a loose and 
 negligent practice had sprung up in one or two counties, of render- 
 ing the judgment agaihst the executor or administrator generally, 
 yet the learned chief justice declares the practice to be unfounded 
 and without authority. The writ of execution should recite the 
 judgment as "to be levied of the goods, etc., of the deceased," and 
 the precept should be to levy on the goods, etc., of the deceased. 2 
 Lill. En. 584, 586; 10 Went. PI. 321, 322. 
 
 Though a plaintiff is described as executor or administrator, 
 yet if it is not alleged that the promises were made in the life- 
 
LEGAL REPRESENTATIVES AND THE ESTATES. 93 
 
 time of the testator, or were made to him, or were made to the 
 plaintiff as adminitrator, the action will be [323] regarded as 
 brought in his individual, and not in a representative character. 
 Warden Y..Worthington, 2 Barb. Sup. (N. Y.) 368; Henshall v. 
 Roberts, 5 East (Eng.) 150; Christopher v. Stockholm, 5 Wend.^ 
 (N. Y.) 36; I Chit. PI. 151. 
 
 In Merritt v. Seaman, 6 N. Y. (2 Seld.) 168, the declaration 
 commences: C. M., executor, etc.-, of J. S., deceased, complains, 
 etc., without any other indication that the suit was brought by him 
 in a representative character, and judgment was rendered against 
 the plaintiff, upon a set-off, "to be levied of the goods of the testa- 
 tor, in his hands to be administered," and it was held that this 
 mode of describing the plaintiff as executor, was to be regarded as 
 merely a descriptio personae, in no respect changing the rights of 
 the parties, and that the action being brought in the plaintiff's in- 
 dividual character, a judginent against him in a representative 
 character was erroneous. 
 
 We, therefore, regard this execution as running against the 
 plaintiff, in his individual character, and his own goods and estate 
 were liable to be levied upon under it. 
 
 The principle is settled that a sheriff has nothing to do with 
 the propriety of the process under which he acts, provided the 
 court has jurisdiction, and the process is regular upon its face. 
 State V. Weed, 21 N. H. (i Foster) 262. 
 
 The jurisdiction of the court of common pleas to issue an 
 execution for costs is not denied. But it is contended that an exe- 
 cution for costs against an administrator should run not against 
 the goods of the administrator himself, but against the goods of 
 the deceased, in his hands to be administered. If this is a propo- 
 sition universally true and without any exception, it might furnish 
 ground for an argument that the execution must have been issued, 
 in this case, either erroneously or irregularly. If otherwise, if 
 there is any case in which an execution may properly issue against 
 the proper goods of an administrator, then the execution here is 
 well enough, so far as the officer is concerned. He is not bound 
 to look beyond the face of the execution, and if there is [324] 
 nothing there which shows it to have issued improperly, he is not 
 bound to inquire further. 
 
^4 AGAINST WHOM AVAILABLE. 
 
 The case of Pillsbury v. Hubbard, before cited, is a direct au- 
 thority that where the cause of action is alleged to have arisen after 
 the death of the testator or intestate, and the executor or adminis- 
 trator might sue in his own right, without describing himself as 
 such, judgment may well be entered against him de bonis propriis, 
 the allegation that he was executor or administrator being con- 
 sidered in such case as a des,criptio personae. 
 
 So that upon the face of the execution there was nothing that 
 indicated any error or irregularity. 
 
 If the process here did issue either erroneously or irregularly, 
 the court having jurisdiction, it is not void, but is at most voidable. 
 If erroneous, a party even may justify under it, whatever was done 
 by virtue of it while it was in force; and if irregular, it is a justi- 
 fication for the party till set aside. Much more must it be so in 
 the case of an ofHcer. See Blanchard v. Goss, 2 N. H. 491, where 
 this subject is ably discussed by Richardson, C. J. 
 
 Judgment for the defendant. 
 
 b. THE PROPERTY OF THE ESTATE OR WARD. 
 
 UNITED' STATES v. DRENNEN. 
 Hempstead (IP. S. C. C.) 320, Federal Cases No. 14.992- (184S) 
 
 Execution — On Judgments Against Administrators — Federal Jurisdic- 
 tion — Assets of Deceased Persons. 
 
 Petition to quash an execution. 
 
 The Court by Johnson, District Judge. This was an applica- 
 tion to quash an execution issued on a judgment obtained by the 
 United States against John Drennen and Elias Rector, adminis- 
 trators of Wharton Rector, deceased, in the district court of Ar- 
 kansas. * * * 
 
 The ground upon which the execution was sought to be 
 quashed was, that in view of the law of the state, none could be 
 issued against administrators; and it was insisted by the counsel 
 for the petitioners, that a judgment against an administrator must 
 be filed in the probate court, according to the laws of Arkansas, 
 classed and satisfied out of the assets of the estate in the regular 
 course of administration, in full if the estate was solvent, and pro 
 rata if insolvent, and that to allow an execution to be issued and 
 
LEGAL REPRESENTATIVES AND THE ESTATES. 95 
 
 levied on the assets of the deceased, and have them sold, would 
 disturb the course of administration, and enable one creditor to 
 obtain an advantage over another, when they should all be on an 
 equal footing. This is a question of delicacy and difficulty, and 
 may in many instances in its practical results produce conflicts of 
 authority between the federal and state tribunals, always to be 
 avoided if practicable. * * * There is no defect in jurisdiction, 
 unless it springs from inability to sue executors and administra- 
 tors at all. Now that power is clearly vested in the courts of the , 
 United States, because the act of 1789 adverted to, expressly pro- ! 
 vides for rendering judgments against the estates of deceased per- 
 sons. Gord. Dig. 687. And the same act provides for the issu- 
 ing of executions on all judgments rendered in those courts. 
 * * * Nor does it seem to have been thought, in any instance, 
 that judgments thus rendered could not be executed; and cer- 
 tainly an execution is necessary to the beneficial exercise of the 
 jurisdiction. An execution is said to be the end of the law, and 
 it gives to the successful party the fruits of his judgment. [U. S. 
 V. Nourse] 9 Pet. [34 U. S.] 8. If a court is competent to pro- 
 nounce judgment, it must be equally competent to issue execution 
 to obtain its satisfaction. 8 Wheat. (21 U. S.) 106. A court 
 without the means of executing its judgements and decrees, would 
 be an anomaly in jurisprudence, not deserving the name of a judi- 
 cial tribunal. ■ It would be idle to adjudicate what could not be 
 executed ; and the power to pronounce necessarily implies the 
 power of executing. Congress has the constitutional power to 
 carry into effect all judgments which the judicial department has 
 power to pronounce. * * * 
 
 The law, in allowing judgments and executions against the 
 estates of deceased persons, established no new and unheard of 
 doctrine ; but rather carried out an ancient rule ; because the com- 
 mon law of England enforced claims against estates, by means of 
 judgments and executions de bonis testatoris. * * * One creditor , 
 may obtain priority over another and have his debt satisfied, to / 
 the exclusion of others, who, owing to the exhaustion of property, ' 
 may get nothing, or only partial satisfaction. But this is no 
 greater hardship than may and in fact constantly does occur be- 
 
96 AGAINST WHOM AVAILABLE. 
 
 tween the living, because one creditor, by his activity and vigi- 
 lance, may clothe himself with the right of judicially appropriat- 
 ing sufficient property of the defendant to satisfy the debt, and 
 which may be his entire property, thus shutting out all other 
 claims and debts, and leaving them unpaid. It is difficult to per- 
 ceive, on principle, why vigilance should not reap its appropriate 
 and accustomed reward, as well after as before the death of the 
 debtor. 
 
 It is insisted, that to allow the property of a deceased person 
 to be sold on execution, would be likely to produce a sacrifice of 
 it. But I am not able to perceive why there would be any greater 
 sacrifice than in any ordinary judicial sale. * * * Allowing, how- 
 ever, the objection in its fullest force, it could not affect the ques- 
 tion of power, and would only be a circumstance connected with 
 its expediency. * * * 
 
 On the whole, I am clearly of opinion that this application 
 
 ought to be refused, and that the plaintiffs have a right to proceed 
 
 to a sale of the property. 
 
 Petition refused. 
 
 The statutes of many states provide that demands against the 
 estates of deceased persons, can he collected only through allowance by 
 the probate court, and neither, execution nor attachment is available. 
 Peckham v. O'Hara, 74 Mich. 287. 
 
 A creditor of a decedent attaching when such a statute existed, the 
 court said : "We can find no authority in common or statute law for 
 such a proceeding. Our foreign attachment law authorized no such at- 
 tachment. We have but one way of collecting debts due from the 
 estate of a deceased person, and that is provided by the statute regu- 
 lating the settlement of such estate. There is no authority whatever 
 for collecting such debts by suing the administrator (even if he should 
 be the Rhode Island administrator) and by attaching a debt due to the 
 deceased from another person. The debt is not the personal property 
 of the administrator, and the administrator in Massachusetts had no 
 control over this debt due to his intestate in Rhode Island." Bryant v. 
 Fussel, 11 Rhode Island, 286. 
 
PARTIES AS GARNISHEES. 97 
 
 B. As Garnishees. 
 
 See Brown v. Wiley, post, p. 102, and Hudson v. Saginaw Circuit 
 Judge, post, p. 216. 
 
 3. PARTIES TO THE ACTION AS GARNISHEES. 
 
 A. Plaintiffs. 
 
 GRAIGHLE v. NOTNAGLE. 
 I Peters (U. S. C. C.) 245, Fed. Cas. No. 5,679. (1816) 
 
 Garnishment, Attaching Goods in Hands of Plaintiff — Action by IVlan 
 
 Against Himself — Necessity of Three Parties — Necessity of 
 
 Taking All Statutory Steps — Why — English Decisions. 
 
 Lezvis, Ingersoll, J. R. Ingersoll, and C. J. Ingersoll, for 
 plaintiff. 
 
 Mr. Razvle, for defendants. 
 
 The Court by Washington^ I. This is an action of debt, to 
 recover the amount of a promissory note. The defendants plead 
 that since the last continuance of this action, a writ of foreign at- 
 tachment had issued out of this court, against the plaintiff, a sub- 
 ject of France, at the suit of Frederick Montmollin, a citizen of 
 Pennsylvania, assignee of Joseph Coulon, also a citizen of the same 
 state ; to answer on a plea of trespass on the case ; which writ was 
 laid and served on all the goods and chattels, moneys and effects of 
 the plaintiff, in the hands and possession of the defendants ; with 
 an averment, that the said John J. Graighle, in the said writ of at- 
 tachment mentioned, and the plaintiff in this cause, are one and the 
 same, and not other or different persons ; and, that the said writ 
 of attachment remains in full force, and undetermined. The plea 
 concludes with an averment, and prays judgment of the writ issued 
 in this case, and that the same may be quashed. [246'] 
 
 To this plea there is a general demurrer, and the only question 
 that can arise is upon the validity of the plea. The question ar- 
 gued at the bar was, whether a creditor can lay a foreign attach- 
 ment in his own hands. This question, however, does not arise on 
 these pleadings, since it does not appear from them that Frederick 
 Montmollin, who was plaintiff in the action, and the defendant F. 
 Montmollin are the same persons. * * * 
 
 The ordinary proceedings in a foreign attachment commence 
 
98 AGAINST WHOM AVAILABLE. 
 
 with the writ of attachment ; which is to be served on the goods 
 and chattels of the debtor, in whosever hands or possession the 
 same may be found ; or upon any person, who may be indebted to 
 the defendant in the attachment. Upon the return of the writ, the 
 garnishee is to enter an appearance, which is generally by attor- 
 ney, unless, under the provisions of the act of Assembly of Penn- 
 sylvania, a clause of capias is inserted in the writ; in which case 
 he must give bail for his appearance. Judgment by default is then 
 entered against the defendant, as a matter of course, at the third 
 court after the writ issued; unless he puts in bail. After this, a 
 scire facias issues against the garnishee, to show cause why the 
 plaintiff should not have execution against him, of the defendant's 
 property attached in his hands. To this writ the garnishee may 
 plead the general issue, nulla bona; or any special matter, tending 
 to show that the effects in his hand, or the debt due by him to the 
 defendant, ought not to be condemned. If the issue is found 
 against the garnishee, or if he should not appear and plead, judg- 
 ment is rendered against him, upon which an execution will issue. 
 In aid of this process, the plaintiif may compel the garnishee to 
 answer, on oath, to interrogatories, to be propounded to him ; cal- 
 culated to draw from him a. [24^1 discovery of all the property of 
 the defendant, which he has in his hands, and of the debts which 
 he may owe him. 
 
 The absurdity of process issuing against the plaintiff in the 
 attachment, at his own suit, his answering his own interrogatories, 
 and being subject to execution, for a debt due to himself, are 
 strongly relied upon to prove that an attachment cannot be laid in 
 the hands of the plaintiff in that suit. 
 
 There is certainly at first view great weight in this argument ; 
 and unless the difficulties .upon which it is founded can be removed, 
 by a fair and reasonable construction of the acts of Assembly, it 
 must prevail. It may however be observed, that there are strong 
 reasons for believing that the exclusion of a creditor holding in his 
 hands the property of his debtor, from the benefit of the attach- 
 ment law, was not in the contemplation of the legislature. The 
 law is remedial, and the words of it general, extending the remedy 
 to all creditors, without distinction ; and it would seem strange that 
 
PARTIES AS GARNISHEES. 99 
 
 the only person who cannot obtain justice "against a non-resident 
 should be one who has in his hand the funds out of which that sat- 
 isfaction may be had. There would seem to be a manifest injus- 
 tice, that the plank upon which he might save himself, and upon 
 which he may probably have relied, shouldJ^e taken from him, and 
 given to other creditors. If, however, such be the necessary con- 
 struction of the law, the court must decide in conformity with it, 
 however they may regret it. 
 
 Generally speaking, there are three parties to a writ of foreign 
 attachment. The plaintiff, or creditor; the defendant, or debtor; 
 and the garnishee, who, in relation to the controversy between the 
 plaintiff and defendant, stands very much in the situation of a 
 stake holder. Between either of those parties and himself, there 
 is nothing adverse, unless he makes it so by his own conduct. It 
 is perfectly immaterial to him, which of the parties succeeds. He 
 is only to act bona Ude, by discovering what property of the de- 
 fendant is in his hands ; and as he cannot himself decide between 
 the contending parties, he cannot \_248] deliver over the property 
 to either, without the judgment of the court. The proceedings 
 therefore against him are merely auxiliary to the principal suit, 
 and are intended to secure the end for which it is instituted. But 
 if, from the nature of the case, the end can be obtained without the 
 use of all the means provided by the law, there would seem to be 
 no impropriety in employing such of them only as would be neces- 
 sary to arrive at the proposed object. Because the effect of the 
 suit might be defeated, unless the plaintiff were armed with co- 
 ercive measures against the garnishee ; he certainly cannot be re- 
 quired to use those measures, whether they are necessary or not. 
 The garnishee, therefore, being himself plaintiff in the writ of 
 attachment, there can be no necessity for a summons, scire facias, 
 interrogatories, or aiiy other coercive process against him. If the 
 officer returns that he has attached the defendant by certain prop- 
 erty, which is specified, no reason is p€rceived why the plaintiff 
 may not proceed to obtain judgment against the defendant, and 
 after that, an execution, to be levied on the property attached, upon 
 the plaintiff giving security, according to the requisitions of the 
 law, to restore the same, if the defendant should, within the time 
 
100 AGAINST WHOM AVAILABLE. 
 
 prescribed, disprove or avoid the debt. If the plaintiff, instead of 
 having property in his own hands, belonging to the defendant, is 
 indebted to him, no necessity is perceived for any further proceed- 
 ings; since the money is already in his own hands, and the judg- 
 ment against the defendant has ascertained the amount of his debt ; 
 unless, perhaps, it may be proper to enter a judgment, that the 
 plaintiff have execution of the sum attached, and return the sum 
 in his hands, as in the precedent, which will presently be re- 
 ferred to. 
 
 The mode of proceeding" above suggested, where the plaintiff 
 in the attachment has goods or effects in his hands belonging to 
 the defendant, seems to be fully warranted by the practice under 
 the custom of London, where there is no garnishee, the effects not 
 being in the actual possession of any person. In such a case, the 
 plaintiff obtains a judgment against [24^] the defendant, by de- 
 fault, and an execution against the effects upon which the attach- 
 ment was laid. 
 
 If the attachment be laid upon the lands of the defendant, 
 which it is admitted may be done in this state, no other mode of 
 proceeding can be pursued, there being in such case no garnishee. 
 
 That a creditor may lay a foreign attachment in his own hands 
 according to the custom of London, is clearly established by the 
 cases which will hereafter be referred to ; and yet, the proceed- 
 ings under the custom are so nearly analogous to those provided 
 by the laws of this state, that the objections stated at the bar must 
 equally exist there, as well as here. To the laudable industry of 
 one of the plaintiff's counsel, Mr. Lewis, the court is indebted for 
 the gratification it has received in inspectingthe pleadings in a case, 
 where a foreign attachment was laid in the hands of. the plaintiff 
 in the attachment, and the judgment pleaded at bar, to an action 
 brought by the defendant in the attachment against the plaintiff. 
 It is to [250] be found in Rastel's Entries, page 156, and is 
 referred to by Sergeant Danvers, vol. 2, 313, as the pleadings in 
 the case of Par amor e v. Pain, Cro. Eliz. (Eng.) 598; see also 
 Coke's Entries, 139 b. * * * [254] * * * 
 
 It is not perceived that any injustice is done to the defendant 
 in the attachment, or that the laws of the state of Pennsylvania or 
 
PARTIES AS GARNISHEES. 101 
 
 any general principle of law, are violated by this mode of proceed- 
 ing. It is of no consequence to the defendant whether a trial be 
 had or not, for the purpose of ascertaining what effects of his the 
 plaintiff has in his hands ; or what is the amount of debt he owes, 
 or even what effects are in the hands of the garnishee, where there 
 is one. For if in the latter case, the garnishee cannot controvert 
 the debt claimed by the plaintiff, by confessing himself to be a 
 debtor to the defendant, or to have effects of his in his hands, 
 (which there is no doubt he may do, without danger to himself), 
 judgment goes against him, as a matter of course ; although, with- 
 out such judgment, he cannot deliver over the property or pay the 
 debt to the plaintiff. In the former case, the plaintiff, who is 
 quasi a garnishee, confesses effects in his hands, which he retains, 
 in consequence of the judgment to satisfy his own debt ; but in this 
 case, the defendant in the attachment is allowed, in an action 
 against the plaintiff, to traverse the plea, and thus to contest the 
 debt recovered in the attachment. In fact, the only protection 
 1^55] of the defendant in either case, consists in the security to 
 restore, which the plaintiff must give. Nor can it be said that the 
 law of this state is violated, because such of its provisions as are 
 inapplicable to the case, are not pursued. 
 
 Upon the whole, this court feels itself authorized to sustain a 
 foreign attachment, which is laid in the hands of the plaintiff ; and 
 I am satisfied that in doing so, we not only fulfil the spirit and in- 
 tention of the law, but sanction a practice both just and convenient. 
 In this case, the demurrer must be overruled, and the plaintiff will 
 be allowed to put in a replication, if he chooses so to do. 
 
 This is the leading American case on the subject and Is supported 
 by the weight of authority but contrary decisions will be found in 
 Rhode Island, New Hampshire and Massachusetts. Knight v. Clyde, 12 
 R. I. 119 ; Hoag v. Hoag, 55 N. H. 173 ; Belknap v. Gibbons, 13 Mete. 471. 
 For review of decisions see Rood Garnish. § 39. 
 
 That the garnishment proceedings if dropped without being carried 
 to final judgment against the garnishee would be of no account for any 
 purpose will be seen by consulting Wilder v. Weatherhead, post, p. 288, 
 and Allen v. Hall, post, p. 187, 
 
102 AGAINST WHOM AVAILABLE. 
 
 B. Defendants. 
 
 BROWN V. WILEY. 
 — Georgia — , 32 S. E. 905. (1899) 
 
 Garnishment against Administrator — For Distributive Share Due Him- 
 self as Principal Defendant — Review of Decisions. 
 
 Action by C. M. Wiley, for the use of Nathams & Stalker, 
 against II. R. Brown. From judgment for plaintiff defendant 
 brings error. Affirmed. 
 
 Dessau, Bartlett & Ellis, for plaintiff in error. 
 
 5". A. Reid, for defendant in error. 
 
 The Court by Simmons, C. J. Nathams & Stalker obtained 
 a judgment against G. I. Johns, execution was issued, and a return 
 of nulla bona made thereon. G. I. Johns was made administrator 
 of the estate of Warren Johns. Nathams & Stalker sued out, in due 
 form under the code, a garnishment, and had it served upon 
 G. I. Johns, as administrator of the estate of Warren Johns. He, 
 as administrator, answered the summons of garnishment, denying 
 indebtedness, and denying that he, as administrator, had any prop- 
 erty or effects belonging to him as an individual. This answer 
 was traversed by the plaintiffs in garnishment, and on the trial of 
 the case the jury returned a verdict that G. I. Johns, as adminis- 
 trator, had money and effects in his hands belonging to him as an 
 individual in a certain amount. * * * 
 
 We are called upon to decide whether an administrator who 
 has in his hands money belonging to the estate of the decedent, and 
 who individually is entitled to a part of that money as a creditor, 
 heir at law, or legatee of the decedent, can be garnished. It was 
 claimed in the garnishment proceedings that Johns was an heir at 
 law of the decedent, and as such heir at law was entitled to a dis- 
 tributive share of the estate. The jury so found upon the trial of 
 the traverse of his answer to the summons of garnishment. It is 
 certainly true that, without the aid of a statute, an administrator 
 or executor cannot be garnished for funds which he holds as such 
 administrator or executor. The reason is that he is an officer of 
 the court, and, as such, must account to the court for all funds in 
 his hands, and it would be improper and against public policy for 
 
PARTIES AS GARNISHEES. lO-S 
 
 another court to interfere with the administration. Many of the 
 states of the Union have changed this rule by special statutes. 
 Among those which have done so is this state. Our Civil Code 
 provides (§§ 4734, 4735) : "As a general rule, the interest of 'a 
 legatee or distributee is not the subject of garnishment issued 
 against an executor or administrator, but if the legacy has been 
 assented to by the executor, and such legacy is not defeated by 
 debts against the estate, and when there has been a final settlement 
 by the administrator, and there remains in his hands a fixed bal- 
 ance, such legacy or the interest of the distributee or heir may be 
 reached by process of garnishment, at the instance of a creditor 
 of such legatee, distributee, or heir at law, as the case may be. 
 In every case a garnishment may be issued against an executor or 
 administrator for a legacy or distributive share, or for any debt 
 or demand owing by said estate to any other person, if the creditor 
 will swear — in addition to the oath required in ordinary cases — 
 that his debtor resides without the state, or is insolvent. In such 
 cases the executor or administrator shall not be compelled to an- 
 swer the garnishment until the estate in his hands is sufficiently 
 administered to enable him safely to answer the same." 
 
 Section 4735 fully authorizes the issuance of a summons of 
 garnishment against an executor or administrator for the distribu- 
 tive share of a legatee or distributee, when a creditor complies 
 with its terms. It is general in its provisions, and makes no ex- 
 ception of an administrator who is also a distributee of the estate. 
 In contemplation of law, G. I. Johns as an individual, and G. I. 
 Johns as administrator of the estate of Warren Johns, are entirely 
 different persons. As an individual he acts for himself; as an 
 administrator he is an officer of the law, and his duties are pre- 
 scribed by law. He acts in two capacities, one as an individual 
 and one as the representative of an estate ( Tillinghast v. Johnson, 
 5 Ala. 514, and Carter v. Ingraham, 43 Ala. 78), and we see no 
 good reason why he cannot be garnished as an administrator for a 
 debt the estate owes him as an individual. In the case of Dudley 
 V. Falkner, 49 Ala. 148, the supreme court of Alabama held, under 
 a statute not nearly so broad as ours, that "a garnishment on a 
 judgment may be sued out against an executor in his official ca- 
 
104 AGAINST WHOM AVAILABLE. 
 
 pacity, although the judgment is against himself personally." 
 And in the opinion, Peters, J., cites the following authorities to 
 sustain that ruling: Grayson v. Veeche, 12 Mart. (La.) 688; i 
 Rolle, Abr. 554; Graighle v. Notnagle, 1 Pet. C. C. 245, Fed. Cas. 
 No. 5,679. These cases we have examined, and they go so far 
 as to hold that plaintiiT in garnishment may attach funds in his 
 own hands to pay a debt due him from the person to whom the es- 
 tate is indebted. See, also, Coble v. Nonemaker, 78 Pa. St. 501 ; 
 Lyman v. Wood, 42 Vt. 113; Boyd v. Bayless, 23 Tenn. (4 
 Humph. ) 386. We are aware that other states have taken a con- 
 trary view of this question, but their decisions are founded upon 
 the phraseology of their particular statutes. See Knight v. Clyde, 
 12 R. I. 119, and Shepherd v. Bridestine, 80 Iowa, 225, 45 N. W. 
 746. Our code gives the express right to garnish an administra- 
 tor, for the distributive share of one of the heirs, and makes no ex- 
 ception when the administrator is himself a distributee, and we 
 therefore are of opinion that the garnishment in this case was 
 legal. * * * 
 
 Judgment affirmed. 
 
 4. QUASI PUBLIC CORPORATIONS. 
 
 A. As Principal Debtors. 
 
 GARDNER v. MOBILE & NORTHWESTERN R. CO. 
 102 Alabama 635, 48 Am.St. 84, 15 South, 47.1. (1892) 
 
 Bill to Quiet Title — Sale on Execution Against Ry. Co. — What Property 
 Liable to Process — Exemption, Duration, Why — Fee or Ease- 
 ment, Importance, Burden of Proof — Power of Corpora- 
 tions to Hold — Attorney's Power to Assign Judgment, 
 Statutory Form — Ratification — Execution in 
 Name of Assignee — Effect. 
 
 Bill in equity by the Mobile & Northwestern Railroad Co. 
 against F. G. Ruffin, F. G. Bromberg, Lucy R. Gardner, individu- 
 ally, and as the administratrix of W. H. Gardner, deceased, and 
 Mary Henry, individually, and as the executrix of Thomas Henry, 
 deceased, to remove cloud from the title to certain lands. From a 
 decree for complainant, defendant appeals. Reversed. 
 
 Overall, Bestor & Gray, for Mrs. Gardner. 
 
 Austin and Pillans, Torrey & Hanaw, for complainant. 
 
 The Court by Stone, C. J. The bill was filed to vacate a sale 
 
QUASI PUBLIC CORPORATIONS. 105 
 
 of lands made by the sheriflf of Mobile county, under executions 
 which were issued from the circuit court of that county, founded 
 on judgments rendered against the appellee. It seeks a cancella- 
 tion of the conveyance made by the sheriff to the purchaser, and 
 of subsequent conveyances dependent on it, and prays an injunc- 
 tion to prevent alleged trespasses on the lands. The validity of 
 the sale by the sheriff is impeached on the ground of alleged [642] 
 irregularities in the issue of the executions ; the payment of one 
 of the judgments ; and because the lands were the right-of-way of 
 the appellee, and, as is asserted, not the subject of levy and sale 
 under executions at law. 
 
 Prior to the issue of the executions under which the sales were 
 made, the judgments had been assigned. The assignments were 
 not made in the mode prescribed by the statute, (Code, § 2927) ; 
 and the mandate of the executions was, that the moneys made 
 should be accounted for to the assignee of the judgments. In all 
 other respects the executions corresponded to the judgments. 
 Judgments have the assignable quality of choses in action, and may 
 be transferred by parol or in writing. If a statutory mode of as- 
 signment is provided, it is cumulative, in the absence of express 
 words inhibiting other modes of assignment. 2 Freeman on 
 Judgments, § 422. The ass'ignment, however made, passes an 
 equity which courts will recognize and protect. It entitles the as- 
 signee to sue on the judgment or to issue execution thereon in the 
 name of the assignor, and is beyond his control or interference. 
 2 Brick. Dig. 153, §§ 308-17. The statute to which we have re- 
 ferred does not lessen the assignable quality of judgments, nor 
 limit the mode of assignment. It is cumulative, entitling the as- 
 signee, if the assignment is made in the mode provided, to sue on 
 the judgment, or to the issue of execution thereon for his use, in 
 the name of the plaintiff' whether living or dead. It in this way 
 dispenses with the necessity of revivor in the event of the death 
 of the plaintiff; and, under the operation of § 2595 of the Code, 
 he may make himself the sole party on the record. The error in 
 the mandate of the executions is, at most, a mere irregularity, in- 
 capable of injury to the appellee, and because of such irregularity 
 a court of equity will not interfere to vacate a sale made by the 
 
106 AGAINST WHOM AVAILABLE. 
 
 sheriff. 2 Freeman on Executions, § 310; Ray v. Womble, 56 
 Ala. 32 ; Lockett v. Hurt, 57 Ala. 198. 
 
 One of the judgments, the one, it is asserted, that was paid 
 prior to the issue of execution thereon, seems to have been assigned 
 by the attorney of the plaintiff therein. Without special author- 
 ity, an attorney at law cannot assign a judgment he may have ob- 
 tained for his client. The authority, or a ratification by the client, 
 [643] may be inferred from circumstances. The assignment was 
 made many years before the issue of the last execution, and so far 
 as is now shown, its validity has never been questioned by the 
 client. The silent acquiescence for years by the client is evidence 
 that the attorney had authority to make it, or of a subsequent rati- 
 fication. The contention of payment of this judgment was not 
 ascertained by the chancellor to be true, and we find no reason to 
 doubt the correctness of his conclusion. 
 
 The other judgment, rendered in favor of Burgess, prior to 
 the issue of the execution under which the levy and sale were 
 made, had become dormant; more than ten years having elapsed 
 after the test of the last preceding execution. The execution was 
 irregularly issued and was voidable, but it was not void, i Free- 
 man on Executions, §§ 28-30 ; Sandlin v. Anderson, 76 Ala. 405 ; 
 Steele v. Tutwiler, 68 Ala. 107. On a proper application, season- 
 ably made, the court of law would have quashed it. McCall v. 
 Rickarhy, 85 Ala. 152. Such an application must have been made 
 with reasonably diligence; unexplained laches would have been 
 fatal to it. Bank of Genesee v. Spencer, 18 N. Y. 150; Cowan v. 
 Sapp, 74 Ala. 44; Ponder v. Cheeves, 90 Ala. 117. 
 
 More than two years elapsed after the issue of the execution 
 and the levy and sale, before the filing of the present bill. 
 Whether the court of law would, at that day, have entertained an 
 application to vacate the sale, because of the irregularity in the is- 
 sue of the execution, it is not necessary to consider. Conceding 
 that court would have intervened, the jurisdiction was exclusive. 
 The rule is very general, that a court of equity will not interfere 
 to vacate a sale under legal process, on account of irregularity in 
 the issue of process, or in its execution ; but, as is properly said, 
 "the application ought to be made to the court issuing the writ, 
 
QUASI PUBLIC CORPORATIONS. 107 
 
 and if made elsewhere ought not to be entertained." There must 
 be accident, surprise, mistake, or fraud, or some fact or circum- 
 stance affecting the sale itself, and not resting on the irregularity 
 of the process, or irregularity in its execution, before a court of 
 ■equity will take jurisdiction to vacate it. There is not in this case 
 averment or evidence of either of these conditions. 2 Freeman 
 ■on Executions, § 310 ;Ray v. IVomble, 56 Ala. 32 ; Lockett v. Hurt, 
 ,57 Ala. 198 ; Coivan v. Sapp, 74 Ala. 44. {644'] 
 
 The more important question is, whether the lands were the 
 subject of levy and sale under the executions ; and this depends, 
 materially, upon the quality of the estate residing in the appellee. 
 The allegation of the original bill is, that they were acquired for a 
 right-of-way, under the charter of the appellee, "by purchase, 
 condemnation and otherwise." 
 
 The general law providing for the creation and regulation of 
 railroad corporations,, approved December 29, 1868, under which 
 the appellee was incorporated and organized, contains the grant 
 from the State of the franchises and powers it claims to have 
 acquired. It did not confer the power of acquiring lands by pro- 
 ceedings in condemnation, or otherwise than by gift or purchase ; 
 and did not limit the estate or interest which could be acquired. 
 The act of March i, 1871, passed after the creation and organiza- 
 tion of the appellee, conferred the power to resort to compulsory 
 proceedings in condemnation for the taking of lands. — Acts, 1870- 
 71, pp. 55-60. 
 
 There is no written evidence of the title of the appellee intro- 
 duced ; no other than vague and indefinite parol evidence, which 
 seems to have been received without objection, indicating that 
 parts of the lands were acquired by condemnation, and other parts 
 by gift or purchase, not distinguishing between them. The grant 
 of power to acquire, hold and convey lands for a right-of-way, or 
 other uses, by the law of 1868, is general and extensive. The 
 third section confers power to ''acquire and convey at pleasure, all 
 such real and personal estate, as may be necessary and convenient 
 to carry into effect the objects for which it was created;" alid the 
 15th section provides for the acquisition, by purchase or gift, of 
 any lands in the, vicinity of the road, or through which it may 
 
108 AGAINST WHOM AVAILABLE. 
 
 pass, SO far as may be deemed convenient or necessary to secure 
 the right-of-way, or such as may be granted to aid in the construc- 
 ■ tion of the road, and to hold and convey the same in such manhef 
 as the board of directors may prescribe. Acts, 1868, pp. 462-466. 
 It is an incidental power of every corporation, unless 
 restrained by statute, to purchase and alien lands necessary for 
 the exercise of its corporate powers, and this, "independent of 
 positive law" conferring such power. Says Ch. Kent: "All 
 corporations have an absolute jus disponendi of lands and chattels, 
 neither limited as to \_645'] objects or corcumscribed as to quan- 
 tity." — 2 Kent, 281. And railroad corporations may take a fee in 
 lands although corporate existence is limited to a term of years. 
 I Morawetz Corp., § 330 ; Davis v. M. &■ C. R. R. Co., 87 Ala., 
 633 ; Nicoll V. N. Y. & E. R. R. Co., 12 N. Y. (2 Kernan) 121. 
 
 What was the quantity and quality of the estate the appellee 
 had in the lands ? The power to acquire an estate in fee, by pur- 
 chase or gift, for a right-of-way, or for other uses, was very broad 
 and general, and, according to the allegations of the bill and the 
 scant evidence introduced, the lands were acquired, certainly in 
 part, by the exercise of this power. If an easement only — ^the 
 right to construct, maintain and operate a railroad in and upon 
 them — was acquired, it is not possible to ascertain the parts sub- 
 ject to the easement, distinguished from the parts in which a fee 
 was acquired. As tlie case is presented, the more probable infer- 
 ence is, that the appellee had an estate in fee in the lands, and not 
 a mere easement. If the latter is the nature or character of its 
 estate or interest, entitling it to hold in exemption from levy and 
 sale, the facts should have been shown by certainty of pleading 
 and satisfactory evidence. 
 
 As a general rule the property of all private corporations is 
 as subject to legal process for the satisfaction of debt as is the 
 property of natural persons. An exception obtains, however, 
 when the corporation is created to serve public purposes charged 
 with public duties, and is in the exercise of its franchise and in 
 the performance of its duties. Then, on considerations of public 
 policy, without regard to the nature or quality of the estate or 
 interest of the corporation, according to the weight of authority, 
 
QUASI PUBLIC CORPORATIONS. 109 
 
 such property as is necessary to enable it to discharge its duties to 
 the public, and effectuate the objects of its incorporation, is not 
 subject to execution at law. The only remedy of a judgment 
 creditor is to obtain the appointment of a receiver, and the seques- 
 tration of its income or earnings. — i Freeman on Executions, § 
 179, and authorities collected in notes ; 2 Morawetz Corp., § 1125 ; 
 Gue V. Tide Water Co., 65 U. S. (24 How.) 257; Overton Bridge 
 Co. V. Means, 33 Neb. 857; s. c. 20 Am. St. 514, and authorities 
 cited. 
 
 The exemption from levy is maintainable, however, only 
 upon the theory that the corporation is created for [(5.^(5] the 
 furtherance of public purposes, of such importance to the public 
 that there must not be private interference with such of the cor- 
 porate property as is essential to effectuate these purposes; and 
 presupposes that to these purposes, the property is being applied. 
 Property not necessary to effectuate these purposes, if acquired 
 by gift or purchase, may be taken by legal process for the satisfac- 
 tion of debts. — 2 Morawetz Corp.,§ 1125. And so may personal 
 property employed, and necessarily employed, in the exercise of 
 corporate franchises. — i Freeman on Executions, § 179. When 
 the lands were levied and sold, the appellee as a corporation had 
 become inert, and had life in a name only. By non-user it had 
 subjected itself to the penalty of forfeiture by a direct proceeding 
 at instance of the State, while only in the absence of such forfeit- 
 ure, it could retain the capacity to exist as a corporation. It was 
 an exsitence in name only. It was not, and had not been for a 
 period of 13 or 14 years, in the exercise of its corporate fran- 
 chises. The line of railroad had been graded, embankments, 
 bridges and trestles had been erected and constructed on the lands 
 in controversy. The work was incomplete, and, for more than 
 sixteen years prior to the levy and sale, had been abandoned. 
 From the only part of the road vyhich was completed, more than 
 fourteen years before the levy and sale, the rails and cross-ties 
 were removed and sold to a street railway company ; and the loco- 
 motive and flat cars, the only rolling stock it seems to have ever 
 possessed, and which had been utilized solely to aid in construc- 
 tion, were sold and carried^svay. Now, conceding that the prop- 
 
no AGAINST WHOM AVAILABLE. 
 
 erty of the appellee, essential to the exercise of its franchise and to 
 effect the public purposes contemplated in its creation, may be 
 exempt from levy and sale under legal process, can the exemption 
 continue after the franchises have been abandoned ? Can it exist 
 when the necessity for its existence has terminated ? We think it 
 is co-extensive with the performance of the public purposes the 
 corporation was intended to promote, and when these purposes 
 are abandoned the exemption ceases, and the property stands in 
 the condition of property not necessary to enable the corporation 
 to perform its duties to the public. — i Freeman on Executions, § 
 179. 
 
 In Benedict v. Heineberg, 43 Vt. 231, a railroad [64^] 
 company had ceased to use a portion of its road, and was remov- 
 ing the rails necessary to its operation. The company owning in 
 fee the part of the road so abandoned, it was held that such part 
 was subject to levy and sale under execution at law. The decision 
 rests upon the proposition, that the land so abandoned was not be- 
 ing held for public uses, or for use as a railroad. In that case, there 
 was an abandonment in fact and intent of the public uses. Here, 
 there was an abandonment in fact. There may have been a lin- 
 gering hope that, at some indefinite time in the future, the corpora- 
 tion might resume activity, and apply the lands to the uses for 
 which they were required; or that they could be sold to some 
 other company having the means or credit to complete the con- 
 struction of a line of railroad. However this may be, the fact 
 remains that there was not an exercise of corporation franchises 
 for years, and the lands were not applied to public uses. Practi- 
 cally there was no pretense that they were held to enable the com- 
 pany to discharge its public duties. We are of opinion they 
 were subject to levy and sale under the executions; that the sale 
 was valid passing to the purchaser the fee vested in the appellee. 
 If the lands were not subject to execution, what remedy could the 
 judgment creditors have? There was no income or earnings to 
 be sequestered. The result of the contention would be that the 
 lands were placed beyond the reach of creditors, and yet the appel- 
 lee held the fee, having power and capacity to sell and convey it„ 
 but applying it to no public uses, and earning no inc6me. 
 
QUASI PUBLIC CORPORATIONS. Ill 
 
 The question we have considered, the right to levy an execu- 
 tion at law, on lands owned and held in fee, as the right-of-way 
 of a railroad corporation, the corporation having become inert and 
 having ceased all user of its franchises and all performances of its 
 public duties,, was not considered in East Ala. Railway Co. v. 
 Visscher, 114 U. S. 340. All that was considered and decided in 
 that case was, whether the mere right-of-way of a railroad com- 
 pany, "a mere easement in the land, to enable it to discharge its 
 functions of making and maintaining a public highway, the fee of 
 the soil remaining in the grantor," was the subject of levy and sale 
 under execution at law. The court expressly declared that it was 
 "not necessary to discuss the general question as to the right to 
 levy an execution at law on property {6481 owned by a railroad 
 company in fee." Nor is it now necessary to express an opinion 
 whether under any circumstances, the easement of a railroad com- 
 pany may or may not be the subject of levy and sale under execu- 
 tion at law. 
 
 The assignments of error are numerous, presenting many 
 
 questions which have been discussed by the respective counsel. 
 
 The conclusion we have reached renders it unnecessary to consider 
 
 them in detail. The result is, the decree of the chancellor must 
 
 be reversed, the injunction dissolved, and the bill dismissed at the 
 
 cost of the appellee in this court and in the court of chancery. 
 
 Reversed and rendered. 
 For further discussion of this topic see Freem. Ex. § 348 and cases 
 cited; also Overton Bridge Co. v. Means, 33 Neb. 857, 29 Am. St. S14, 51 
 N. W. 240, in which a sale on execution of the company's toll bridge 
 over Platte River and its operating franchise to pay a judgment against 
 it for the builder's claim was enjoined. 
 
112 AGAINST WHOM AVAILABLE. 
 
 B. As Garnishees. 
 
 BATES V. CHICAGO, MILWAUKEE & ST. PAUL RY. CO. 
 60 Wisconsin 296, 19 N. W. 72, 50 Am. Rep. 369. (1884) 
 
 Garnishment of Ry. Co. for Hogs In Transitu — Service on One Agent, 
 Property in Possession of Another, Constructive Notice, Delivery, 
 Diligence, Liability — Exennption from Garnishment, Why, De- 
 cisions Reviewed — Garnishee Chargeable for Property 
 Held out of State, Why — Liability as Custodian for 
 Property not Subject to Seizure. 
 
 Garnishment by Alphonzo C. Bates against the Chicago, Mil- 
 waukee & St. Paul Railway Co. as garnishee of the principal 
 defendant, P H. Cunningham. From judgment for the plaintiff, 
 the garnishee appeals. Reversed. 
 
 On the trial of the issue, formed on the garnishee's answer de- 
 nying liability, it appeared, that when the garnishment summons 
 was served at Milwaukee, Wis., at 5 a. m., the garnishee was in 
 possession of a carload of hogs belonging to defendant, which 
 were in transit to the Chicago stock yards, where they arrived and 
 were delivered to the consignee at 7 :20 a. m. the same day. The 
 plaintiff claimed the garnishee was liable on these facts. 
 
 Fuller & Fuller and H. H. Field, for appellant. 
 
 Robert F Pettibone, for respondent. - 
 
 The Court by Taylor, J. After a careful consideration of 
 the facts, and the arguments of the learned, counsel for the respec- 
 tive parties, we have concluded that the learned circuit judge erred 
 in refusing to instruct the jury as requested by the appellant, {300] 
 and also in rendering judgment in favor of the respondent upon 
 the special verdict. 
 
 I. It seems to us very plain that where the law authorizes the 
 service of a garnishee summons upon an officer of a corporation 
 who has not in his actual possession the property sought to be 
 reached by such process, but such property is in the possession of 
 some other officer or employee of the company, and such other 
 officer or employee delivers such property to a person authorized 
 to receive the same, before he can, with reasonable diligence on the 
 part of the officer served, be notified to retain the possession there- 
 of, such service is not sufficient to charge the corporation as gar- 
 
QUASI i'QBLIC CORPORATIONS. 113 
 
 nishee. Nor do we think the officer served is under obigation to 
 use extraordinary dihgence in notifying the officer or other em- 
 ployee in charge of the property of the service of the process. He 
 is bound to use reasonable diligence in respect to the matter, and 
 if by the use of reasonable diligence notice cannot be given to the 
 person in the actual possession of the property before it has law- 
 fully passed from the possession of the corporation, the corpora- 
 tion cannot be held liable as garnishee in respect to such property. 
 
 In this case the garnishee summons was served at an unusual 
 time, five o'clock in the morning, on the 2d of March, at a time 
 when the officer was probably in his bed, upon an officer who, as 
 the evidence shows, had no knowledge of the fact that the com- 
 pany had any property of the defendant in its possession, and 
 whose business did not require him to have any knowledge upon 
 that subject; and, so far as the evidence in this case shows, he had 
 at hand no ready means of ascertaining the fact that it had any 
 property of defendant in its possession ; and within two and one 
 half hours of the service of the process upon such officer of the 
 company the property sought to be reached by the proceeding was 
 without notice delivered to the person entitled to receive the same 
 under the contract by which the company held possession [301] 
 of it when the summons was served, at a place nearly a hundred 
 miles from the place where the officer was served with the sum- 
 mons. We think that, as a question of law, the service was insuf- 
 ficient to charge the company as garnishee. 
 
 We think the rule applicable to the notice which must be 
 given by the vendor to stop goods in transitu, should apply to a 
 case of this kind. The rule applicable to such cases is well stated 
 by Parke, B., in Whitehead v. Anderson, 9 Mees. & W., 534. He 
 says : "H notice be given to the principal whose servant has the 
 actual possession of the goods, it must be given at such a time and 
 under such circumstances that the principal, by the exercise of 
 reasonable diligence, may communicate it to his servant in time to 
 prevent the delivery to the consignee ; and to hold that a notice to 
 a principal at a distance is sufficient to revest the property in the 
 unpaid vendor, and render the principal liable in trover for a sub- 
 sequent delivery by his servant to the vendee, when it was impos- 
 
114 AGAINST WHOM AVAILABLE. 
 
 sible, from the distance and want of means of communication, to 
 prevent that delivery, would be the height of injustice. The only 
 duty that can be imposed on the absent principal is to use reason- 
 able diligence to prevent the delivery." It seems to us that it 
 would be the height of injustice to hold the railroad company liable 
 as garnishee for goods which their servants and employees have 
 delivered to the consignees entitled to receive them, having no 
 notice at the time of making such delivery that any garnishee pro- 
 cess had been served, and before a reasonable time had elapsed, 
 after the service upon a distant officer of the corporation, within 
 which notice could have been given to stop such delivery. To hold 
 the company liable in such case would do violence to the statute 
 which directs that "the court shall render such judgment in all 
 cases as shall be just to all the parties, and properly protect their 
 respective interests," etc. R. S., § 2766. The rule above stated 
 was held applicable [302] to the garnishee process by the supreme 
 court of Massachusetts in Spooner v. Rowland, 4 Allen, 485. In 
 this case it was held that the service of the process on the secretary 
 of an insurance company in Boston, to attach money due on an 
 insurance policy, was insufficient, when it appeared that three 
 hours after the service the agent of the company paid the loss at 
 Worcester to the claimant, without actual notice of the process. 
 
 2. Notwithstanding the general language of our statute upon 
 the subject of garnishment, that "any creditor shall be entitled to 
 proceed by garnishment, in the circuit court of the proper county, 
 against any person (except a municipal corporation) who shall be 
 indebted to, or have any property whatever, real or personal, in his 
 possession, or under his control, belonging to such creditor's 
 debtor, in the cases, upon the conditions, and in the manner pre- 
 scribed in this chapter" (R. S. § 2752), — we feel constrained to 
 hold that the personal property or real estate in his possession or 
 under his control must be limited to personal property or real 
 estate within this state, and that in the absence of any fraud or 
 connivance on the part of the garnishee to aid the debtor in de- 
 frauding his creditors, personal property or real estate which is 
 lawfully in the possession or under the control of the garnishee 
 outside of this state is not the subject of garnishment under our 
 
QUASI PUBLIC CORPORATIONS. 115 
 
 statute. That personal chattels outside of the state, which, if 
 within the state could be seized by attachment or execution, were 
 not intended to be covered by the statute, is, we think, evident. 
 
 The attachment of the debtor's property before judgment has 
 always been considere'd a harsh remedy in this state, but that writ 
 can only reach the property of the debtor within the state. R. S., 
 § 2738. The garnishee process is in the nature of an attachment, 
 and was first used to attach the credits of the debtor and apply 
 them to the payment of his debts, but it has been extended in this 
 state so [505] as to attach, without actual seizure, the personal 
 property and real estate of the debtor in the possession or under, 
 the control of third persons, so as to apply such property to the 
 payment of his debts. We do not feel called upon to give this 
 statute, which is in its nature a harsh remedy, a construction 
 which would give the courts under it the highest powers of a 
 court of chancery, viz., the power to compel a debtor to surrender 
 his property held within a foreign jurisdiction, to be applied to the 
 payment of his debts within this state. If under this statute the 
 circuit court can exercise this power, then any justice of the peace 
 may, for the same language is used in the statute which gives the 
 power to justices' courts over the garnishee process that is used 
 with respect to circuit courts, except that it leaves out the words 
 "or real estate." As to personal property the language is the 
 same. R. S.', § 3716. 
 
 The statutes of this state, considered together and as one 
 system, clearly indicate that the personal property which may be 
 arrested in the hands of a garnishee must be within the state, so 
 that it may be seized and sold to satisfy any judgment obtained 
 against the principal debtor. Sec. 2762, R. S., relating to the pro- 
 ceedings in the circuit court, says : "If the answer disclose any 
 money, credits or other property, rfeal or personal, in the posses- 
 sion or under the control of the garnishee, the officer having a writ 
 of attachment or an execution, if any, may levy upon the interest 
 of the defendant in the same ; otherwise the garnishee shall hold 
 the same until the order of the court thereon." The last clause 
 of the section evidently relates to the cases where the garnishee 
 is summoned in an action not commenced by attachment, and in 
 
116 AGAINST WHOM AVAILABLE. 
 
 such cases he must hold the property to await the judgment of the 
 court in the principal action. The act giving jurisdiction of the 
 proceedings to justices of the peace, provides as follows: "The 
 justice shall enter an order in his docket, requiring the garnishee, 
 within ten days, to [304] pay or deliver to the justice such prop- 
 erty, or the amount of such indebtedness, or so much thereof as 
 may be necessary to satisfy such judgment; * * * and all prop- 
 erty and effects, except money delivered to the justice, shall be by 
 him ordered to be sold on the execution against the defendant." 
 
 R. s., § 3725- 
 
 These provisions clearly indicate that the personal property 
 to be reached in the hands of a garnishee is such as would be sub- 
 ject to seizure by the writ of attachment or execution, if they were 
 in the possession of the principal debtor. It is unnecessary to in- 
 timate the difficulties and hardships which would result from the 
 enforcement of a rule against garnishees compelling them to de- 
 liver up to the processes of the courts of this state any property 
 they may have under their control, belonging to the principal 
 debtor, situated in another state. The difficulty in the case at bar 
 might not be great, because the property, although in fact out of 
 the state when the garnishee summons was served, was not as 
 distant from the place where the court was held, which issued it, 
 as it might have been within the state. But the rule, if estab- 
 lished, must be general, so that if property just beyond the line of 
 the state may be reached, then property in Maine, Louisiana, or 
 California, or in any foreign country, may also be reached and 
 held. The difficulties and injustice of enforcing such a rule are 
 apparent. The only case cited by the learned counsel for the re- 
 spondent in which any court has held that personal property out 
 of the state, in which the garnishee process was issued, could be 
 reached and held by it, is Childs v. Digby, 24 Pa. St., 23. That 
 case was disapproved as bad law by the same court in Penn. R. 
 R. Co. V. Pennock, 51 Pa. St., 244. The position taken by us 
 upon this question is approved by the Pennsylvania court in the 
 case last cited, and also in the following cases : Western R. R. v. 
 Thornton, 60 Ga., 300 ; Sutherland v. Second Nat. Bank, 78 Ky. 
 250; Wheat V. P- C. & Ft. D. R. R. Co., [305] 4 Kan. 370, 378; 
 
QUASI PUBLIC CORPORATIONS. 117 
 
 /. C. R. R. Co. V. Cobb, 48 111. 402 ; Lawrence v. Smith, 45 N. H. 
 533 ; Tingley v. Bateman, 10 Mass. 343, 346 ; Clark v. Brewer, 6 
 Gray (Mass.), 320; Young v. Ross, 31 N. H. (11 Foster), 201. 
 
 It is urged by the learned counsel for the respondent that the 
 garnishee should be held for property in his control out of the 
 state, because the court could enforce its order against the person 
 of the garnishee, over whom it has jurisdiction, in like manner as 
 a court of equity sometimes enforces a contract between the 
 parties to the action to convey lands situated in another state. 
 Our answer to that argument is, as stated above, that it is clear 
 that the legislature did not intend to confer these high equity pow- 
 ers upon the courts having jurisdiction of the garnishee process. 
 It is unnecessary, therefore, to discuss the question of the power 
 of the legislature to confer upon the courts of this state the au- 
 thority to appropriate the personal property or real estate of a 
 debtor, situate in another state or foreign country, to the payment 
 of his debts in this state. 
 
 3. Another question of very great importance to all common 
 carriers, and especially to all railroad companies within this state, 
 was very fully discussed by the learned counsel for the respective 
 parties orally and in their briefs; and, although not absolutely 
 necessary to a determination of this appeal, we deem it highly 
 proper to consider it in this case. The exact question is this : Can 
 a common carrier be held liable, upon a garnishee summons, for" 
 personal chattels in his possession in actual transit at the time the 
 summons is served? 
 
 We think that public policy, and the proper discharge of the 
 duties imposed upon common carriers of personal chattels placed 
 in their possession for carriage, requires that this question should 
 be answered in the negative ; and-we think so, notwithstanding the 
 very broad language of the statute above quoted. That railroad 
 corporations, as well [jod] as individuals and other corporations, 
 are subject to the garnishee process must be admitted, and that in 
 proper cases they must be held to respond as individuals. This 
 court has so held as to debts due from the railroad company to the 
 principal debtor in the action. The nature of the possession and 
 control which the railroad company has of and over personal prop- 
 
118 AGAINST WHOM AVAILABLE. 
 
 erty in actual transit ; the interruption of business, and the general 
 inconvenience which must necessarily result from holding such 
 property the subject of the garnishee process, — it appears to us 
 are amply sufficient to justify us in making such property an ex- 
 ception to the general rule, in the absence of any positive declara- 
 tion of the legislature subjecting such property to the process. 
 Notwithstanding the general language used in statutes of this 
 kind, the courts have established many exceptions, depending 
 upon the nature and character of the possession and control which 
 the person or corporation proceeded against has over the property 
 in his or its possession. This court has established many excep- 
 tions, where it is admitted the language of the statute was broad 
 enough to include the corporations or officers excepted by the 
 courts. Burnham v. Fond du Lac, 15 Wis. 193 ; Hill v. La. C. & 
 M.'R. R. Co., 14 Wis. 291 ; Buffhain v. Racine, 26 Wis. 44g;Mer- 
 rell V. Campbell, 49 Wis. 535. So this court, as well as others, 
 has made exceptions, and taken cases out of the general words of 
 the statute on account of the nature of the indebtedness of the gar- 
 nishee which is sought to be reached by the garnishee process. 
 Thus, where the debt sought to be reached is in the form of a ne- 
 gotiable promissory note or bill of exchange, the debtor is not held 
 chargeable as garnishee except under a showing of facts which 
 will clearly protect him against the actual holder of the note or bill. 
 Carson v. Allen, 2 Pin. (Wis.), 457; Davis v. Pawlette, 3 Wis. 
 300 ; Mason v. Noonan, 7 Wis. 609 ; State e.v rel. Rogers v. Bur- 
 ton, II Wis. 50; Beck V. Cole, 16 Wis. 95. These cases are abun- 
 dant to [ J07] show that where the public good requires it, or when 
 it is necessary to protect the rights of the garnishee, the courts 
 have not hesitated to say that the general words of the statute 
 should be construed not to include the party or the particular sub- 
 ject matter of the controversy. * * * [308'^ 
 
 * * * We think when the legislature gave the garnishee proc- 
 ess in an ordinary action upon contract before judgrrient, and 
 where there is no allegation of any fraudulent attempt on the part 
 of the debtor to defraud his creditors, it could not have contem- 
 plated that it would be used for the purpose of interfering with 
 the business of railroads and other common carriers in the prompt 
 
gUASI PUBLIC CORPORATIONS. 119 
 
 performance of their duties to the pubhc ; and when the plaintiff, 
 upon allegations of fraud, proceeds by writ of attachment against 
 the property of his debtor, he should take the risk of the actual 
 seizure of the defendant's property if found in the hands of the 
 carrier, and assume the risk as well as the expense of establishing 
 the ownership of the property by the defendant, and not be al- 
 lowed to cast that risk and expense upon the carrier by summon- 
 ing him as garnishee. 
 
 There are but few decisions of the courts upon this subject. 
 We have been referred by the learned counsel for the respondent 
 to the case of Adams v. Scott, 104 Mass. 164, as sustaining the 
 right to hold, by garnishee process, goods in the hands of a com- 
 mon carrier while in transitu. It must be admitted that the court 
 so held in that case. It was a very plain case. There was no dis- 
 pute about the ownership of the property, and the property at the 
 time of the service seems to have been not in actual transit, but 
 in the hands of an agent of -the company in the city of Boston. 
 Still it is quite plain that the court held that the fact that the prop- 
 erty was in the hands of a common carrier in transit, was no ob- 
 jection to the proceedings. This is the only [sop] case, we have 
 found which sustains the doctrine contended for "by the respon- 
 dent. On the other side, the learned counsel for the appellant 
 have cited us the cases of /. C. R. R. Co. v. Cobb, 48 111. 402, and 
 M. C. R. R. Co. V. C. & M. L. S. R. R. Co., i 111. App. (i Bradw.) 
 399, which sustain the contrary doctrine, and hold that chattels in 
 the hands of a common carrier in transitu, are not the subject of 
 garnishment. The doctrine of these cases has some support in 
 the cases of Penn. R. R. Co. v. Fennock, 51 Pa. St. 244, 254, and 
 Western R. R. Co. v. Thornton, 60 Ga. 300. We approve what 
 was said by Chief Justice Breese in the case of /. C. R. R. Co. v. 
 Cobb, supra, about the injustice of holding the common carrier as 
 garnishee in respect to property in actual transit, viz. : "They are 
 obliged, under ordinary circumstances, to carry all that shall be 
 delivered to them, and they discharge their duty by carrying and 
 delivering according to the contract. It is not their business, nor 
 is it their interest, to know to whom the various articles belong, 
 nor should it be required of them that conflicting claims to the 
 
120 AGAINST WHOM AVAILABLE. 
 
 property intrusted to them should be adjusted through controver- 
 sies in which they have no interest, and the burden, annoyance, 
 and expense of which they must bear. When the goods are in 
 the depot of a railway company in the county in which the attach- 
 ment proceedings are instituted, there could, perhaps, be no ob-> 
 jection to such process; but on this point we express no definite 
 opinion. When the property has left the county, and is in transit 
 to a distant point, though on the same line of railway, it would be 
 unreasonable to subject the company to the costs, vexation, and 
 trouble of such process, merely because it had received to be car- 
 ried that which the law compelled it to receive and carry." 
 
 Whether goods in a depot of a railway company in this state, 
 either before transit or after, and awaiting delivery [310] after 
 their arrival at the place of delivery, would be subject to the gar- 
 nishee process, we do not determine. 
 
 For the reasons stated, the judgment of the circuit court must 
 be reversed. 
 
 By the Court. — The judgment of the circuit court is reversed, 
 and the cause remanded with instructions to that court to enter a 
 judgment upon the special verdict in favor of the garnishee de- 
 fendant. 
 
 For further decisions on garnishments against quasi public cor- 
 porations see Rood, Garnish., § 37. * 
 
 5. PUBLIC CORPORATIONS. 
 
 A. As Principal Debtors. 
 
 KLEIN V. NEW. ORLEANS. 
 99 United States 149. (1878) 
 
 Execution en Judgment against a City — What Property Liable, Why — 
 Objection, How Made. 
 
 John Klein, having procured execution on a judgment for 
 $89,000 recovered by him against the city of New Orleans, a rule 
 on the plaintiff to show cause why the levy upon certain lands 
 thereunder should not be set aside, was made on motion of the 
 city. On the hearing, the rule to dissolve the seizure was made 
 absolute, and Klein thereupon brought the case here. Affirmed. 
 
PUBLIC CORPORATIONS. 121 
 
 /. Q. A. Fellozvs, for the plaintiff in error. 
 
 B. F. Jonas, contra. 
 
 The Court by Waite, C. J. We must take the facts of this 
 case as they are stated in the bill of exceptions, and cannot look 
 into the evidence. The questions to be settled are: i. Whether 
 the lands levied on are subject to seizure and sale under execution 
 against the city; and, 2. Whether the ground rents are liable in 
 the same way. 
 
 This depends on the facts. If the lands are held by the cor- 
 poration for public purposes, and the ground rents are part of the 
 public revenues, it is well settled that they cannot be levied on or 
 sold. Dillon, Mun. Corp., §§ 64, 446. Municipal corporations 
 are the local agencies of the government creating them, and their 
 powers are such as belong to sovereignty. Property and revenue 
 necessary for the exercise of these powers become part of the ma- 
 chinery of government, and to permit a creditor to seize and sell 
 them to collect his debt would be to permit him in some degree to 
 destroy the government itself. 
 
 The bill of exceptions shows that the lands consisted of "two 
 squares of ground which had formerly constituted the easterly 
 bank of the Mississippi River, but which, by the gradual accretion 
 of said easterly- bank, had ceased to constitute the bank of the 
 river, but which were now used by the public for wharf and levee 
 purposes, said squares forming a portion of the land known as the 
 'Batture property.' "' From this it must be [151'] inferred that 
 they were held for the use of the public. In a city where business 
 is carried on by water, a public wharf is as much a public neces- 
 sity as a public street or highway. If the land in this case had still 
 continued to be the bank of the river, and used and improved as 
 a public landing, it certainly could not have been subject to sale 
 on execution against the city ; but we think a simple extension of 
 its surface does not change its character. If it continues to be 
 used as it was before, it is still public wharf or levee property. It 
 matters not that charges may have been made by the city for 
 wharfage. That would be nothing more than a proper govern- 
 mental regulation. A street extending to navigable waters and 
 used for wharf purposes does not cease to be public property be- 
 
122 AGAINST WHOM AVAILABLE. 
 
 cause a charge is made for its use in that way. The test in such 
 cases is as to the necessity of the property for the due exercise of 
 the functions of the municipahty. Upon the facts as stated by the 
 court 'below, we think the lands levied upon were not subject to 
 seizure and sale. 
 
 As to the ground rents, it was decided by the Supreme Court 
 of Louisiana, in New Orleans & Carrollton Railroad Co. v. Muni- 
 cipality No. I (7 La. Ann. 148), that "in authorizing the mayor 
 and city council (of New Orleans) to sell property on perpetual 
 ground rent, the legislature established a legal destination of the 
 rents, as a portion of the public revenue of the city, to enable the 
 municipal authority to exercise its powers of police and govern- 
 ment. These rents, therefore, cannot be sold under execution 
 against the municipality." There is nothing in the bill of excep- 
 tions to show that the rents levied upon in this case were in any 
 respect different from those uijder consideration in that. We 
 must presume, therefore, that they are the same. 
 
 Judgment affirmed. 
 
 See also the following cases for a fuller discussion of these prin- 
 ciples: New Orleans v. Louisiana Construction Co., 140 TJ. S. 654; 
 Darlington v. New York, 31 N. Y. 164, 88 Am. Dec. 248; Leonard v. 
 Brooklyn, 71 N. Y. 498, 27 Am. Rep. 80. 
 
 "We think that all property held by the city authorities for the 
 public use, health and enjoyment of the people of the city, is not so 
 liable to levy and sale. Further, we are of the opinion that all prop- 
 erty of every kind held by the municipality Is presumptively for the 
 public use, and whilst perhaps the presumption may be overcome, on 
 proof that the corporation is holding it for other purposes, * * * yet 
 the onus would be upon the plaintiff in execution to make that proof." 
 Curry v. " The Mayor and Aldermen of Savannah, 64 Ga. 290 , 37 Am. 
 Rep. 74, 
 
 In 111. and perhaps some other states no property of a municipal 
 corporation can be sold under judicial process. Irrespective of the pur- 
 pose for which it is used. City of Chicago v. Hasley, 25 111. 485. 
 
 Mandamus is the proper remedy to compel payment of judgments 
 against municipalities. See Dillon on Mun. Corp. 1890 Ed. § 851; also 
 Memphis v. United States, ante, p. 25 and 26. 
 
PUBLIC CORPORATIONS. 123 
 
 B. As Garnishees. 
 
 WATERBURY v. BOARD OF COMMISSIONERS, 
 in Montana 515, 24 Am. St. 67, 26 Pac. 1002. (1891) 
 
 Garnishment against County — Terms of Statute — Exemption, Reasons 
 
 Pro and Con, Decisions Reviewed — Klein v. New 
 
 Orleans Distinguished. 
 
 Action by Waterbury against Harnon, in which the Board 
 of Commissioners of Deer Lodge County was summoned as gar- 
 nishee. From a judgment discharging the garnishee, Waterbury 
 appeals. Reversed. 
 
 Under the Mont. Ter. Code Civ. Proc. § 189, "All persons" 
 summoned as garnishees are liable for defendant's property in 
 their possession and any debts they owe him ; and by General Laws 
 § 202, "The word 'person' may extend and be applied to bodies 
 politic and corporate." By Gen. Laws, § 744, "each organized 
 county of this state shall be a body politic and corporate." 
 
 G. B. Winston, for Appellant. 
 
 Henry J. Haskell, Attorney-General, and W. S. Shaw, County 
 Attorney, for Respondent. 
 
 The Court by De Witt, J. This action arose while this com- 
 monwealth was a Territory of the United States, and the laws ap- 
 plicable to the contention are set forth in the introductory state- 
 ment. 
 
 The garnishment of towns, cities, and counties has been the 
 subject of such conflicting views in different states, and being a 
 first impression in this court, we incline to adopt the language of 
 Judge Welch in City of Newark v. Funk, 15 Ohio St. 463: "In 
 other states authorities are quite conflicting; so much so, that we 
 do not feel bound by any of them, and see nothing to prevent us 
 from deciding the question as an original one, according to our 
 own views of public policy and the meaning and intent of the 
 statute." 
 
 This conflict to some extent, but by no means wholly, dis- 
 solves, upon an inspection of the statutes upon which the decisions 
 are made. In 2 Wade on Attachments, §§ 345 and 419, are mar- 
 shaled the states holding diverse views, and the author concludes 
 that the majority is against holding municipal corporations as gar- 
 
124 AGAINST WHOM AVAILABLE. 
 
 nishees. But the author doubts the soundness, and questions the 
 reason of the rule. There is eminently respectable opinion upon 
 the other side of the question. 
 
 An analysis of the case would be interesting, but we will not 
 enter upon it, by reason of the direct conflict of the decisions, even 
 upon similar statutes ; and, furthermore, we are of opinion that 
 the statutes of this state are so much more explicit upon the sub- 
 ject under consideration, that many of the decisions of sister 
 states are ipapplicable, and that, in view of our statute, [520] the 
 weight of authority is not against the liability of a county as a gar- 
 nishee. 
 
 It is not doubted that the statute may exempt a county from 
 the process of garnishment. Our statute does not so exempt a 
 county ; and, if they are to be exempted, the authority must be 
 found elsewhere than in the express declaration of the statute. 
 Again, the statute may subject a county to this process. Now 
 what do we find written in the law ? It declares that "all persons" 
 having in their possession or under their control any credits or 
 other personal property belonging to the defendant, or owing debts 
 to him, etc., shall be liable to the process. Furthermore, that the 
 word "person" may be applied to "bodies politic and corporate," 
 and that counties are "bodies politic and corporate." Hence coun- 
 ties, as "bodies politic and corporate," are brought within the 
 meaning of the word "persons," and all persons may be garnished. 
 It is therefore no strained conclusion to say that a county is sub- 
 ject to the process. 
 
 Speaking of holding a county as garnishee, Judge Biddle 
 (Wallace v. Lawyer, 54 Ind. 506; 23 Am. Rep. 661) says: "And 
 the decisions are generally made upon statutes authorizing cor- 
 porations, in terms, to be garnished ; yet the courts hold that the 
 general word 'corporation' must be restricted to mean private or 
 ordinary business corporations, and not extended to embrace mu- 
 nicipal corporations, or bodies politic and corporate. The words 
 used in the statute of this state are "persons' or 'corporations,' in 
 general terms." But the statute of Montana, as above noticed, 
 goes further than to use the words "persons" or "corporations" in 
 general terms, as in Indiana, and the remarks of the judge in that 
 
PUBLIC CORPORATIONS. 125 
 
 case, and the authorities to which he refers, lose their force in this 
 court. 
 
 It is a general principle that one who may be sued may be 
 garnished by the creditor of the person who may sue. Counties 
 with us may be sued (§ 744, Gen Laws), and, therefore, under 
 the general rule, they would be subject to garnishment. They, in 
 this respect, do not come within the reason of exempting a sov- 
 ereign state from garnishment, which sovereignty may not be 
 sued, or ordinarily subjected to process of the courts. It being 
 clear that the statute does not expressly exempt counties from gar- 
 nishment, and it being equally clear that the letter of [521] the 
 statute is such that it can be reasonably applied to a county as a 
 subject of garnishment, is there anything in the spirit of the law 
 or th€ doctrine of public policy which prohibits such a construc- 
 tion? 
 
 We will examine, in the light of the statute, the reasons ad- 
 duced for exempting counties from this process of the courts. It 
 is objected that there is practical difficulty in summoning an arti- 
 ficial entity, like a county, to be examined on oath respecting its 
 possession of property of the debtor, as provided in § 190 of the 
 Code of Civil Procedure, and that so summoning its officers is a 
 serious interruption to the business of the county and its officers. 
 
 We cannot agree with this view. The statute (§ 749, Gen. 
 Laws) expressly provides a method for service of process against 
 a county in all legal proceedings. In another portion of the stat- 
 ute (§72) service of a summons upon a county is provided for. 
 Answering a garnishment is by no means as large an affair as ap- 
 pearing in an action as a defendant. The statute providing a 
 method for summoning a county in legal proceedings, we can see 
 no practical difficulty in its appearing. There was certainly none 
 in this case, and no derangement of the county's business occurred. 
 Again, it is said tha,t the writ does not lie against a county by rea- 
 son of its being contrary to public policy ; that disasters to the pub- 
 lic would ensue if the writ were allowed, and public servants 
 would be impaired in their usefulness. In Wallace v. Lawyer, 
 supra, it was held that a county cannot be held to answer as to its 
 indebtedness to an execution debtor for bis salary as an officer of 
 
126 AGAINST WHOM AVAILABLE. 
 
 such county in proceedings supplemental to execution. This case 
 cites with approval Merwin v. City of Chicago, 45 111. 133, 92 Am. 
 Dec. 204, which was a case of garnishment of a municipal corpora- 
 lion, in which the court, by Lawrence, J., says : "The only ques- 
 tion presented by this record is, whether municipal corporations 
 in this state are liable to the process of garnishment. This court 
 held, in City of Chicago, v. Hasky, 25 111. 595, that the property 
 of such a corporation could not be levied on and sold under execu- 
 tion. This decision was placed upon the grounds of public poHcy. 
 However strong the obligation of a town or city to pay its debts, 
 it was considered that to [5^2] allow payment to be enforced by 
 execution would so far impair the usefulness and power of the 
 corporation in the discharge of its governmental functions, that 
 the public good required the denial of such a right. * * * Al- 
 though this decision is not conclusive upon the question before us 
 as res adjudicata, yet the entire spirit and reasoning upon which 
 it is based must lead us to hold that a municipal corporation is not 
 liable to process of garnishment. The question has been often 
 before the American courts, and although the decisions are not 
 uniform, in a large majority of the cases it has been held that the 
 writ wotld not lie. The reason given for these decisions is uni- 
 formly the same, and is substantially that given by this court in 
 the case in 25th 111. It must be decided as a question of public 
 policy. These municipal corporations are in the exercise of gov- 
 ernmental powers to a very large extent. They control pecuniary 
 interests of great magnitude, and vast numbers of human beings 
 who are more dependent on the municipal, for the security of life 
 and property, than they are on either the state or federal govern- 
 ment. To permit the great public duties of this corporation to be 
 imperfectly performed, in order that individuals may the -better 
 collect their private debts, would be to pervert the great objects of 
 its creation." — 
 
 Thus it is observed that the 45 111. 133, on the subject of gar- 
 nishment of a municipal corporation, adopts the reasoning of 25 
 111. 485, in the matter of an execution against the corporation, on 
 a judgment obtained directly against the corporation. The 
 grounds for denying an execution against a municipal corporation 
 
PUBLIC CORPORATIONS. 127 
 
 are most satisfactorily put in 25 III., City of Chicago v. Hasley. 
 The court well points out the disasters which might follow the 
 levy of execution against the city of Chicago ; how the seizure of 
 the water-works would precipitate a water famine, the levy upon 
 fire-engine's would expose to the horrors of conflagration, and the 
 seizure of revenues would paralyze government. To these views 
 we have no dissent. But we cannot follow the Illinois court in 
 45 111., when it applies these arguments to the matter of garnish- 
 ment of the municipal corporation. By garnishment the water- 
 works, fire-engines, public buildings, and revenues of the corpora- 
 tion are not seized. The corporation is simply required to hold, 
 and finally pay over, a sum of money [5^j] or property, in which 
 it has no interest, to one person rather than another. Its business 
 is not interrupted ; its property is not touched ; its functions are 
 not deranged. 
 
 Returning to the case at bar, we cannot agree that there is 
 any reason why the great public duties of a county need be imper- 
 fectly performed, or that its business is in any danger of derange- 
 ment, if it be compelled, by process of a court, to pay the salary of 
 a servant to that servant's creditors. The county has no suit to. 
 defend, no counsel to employ, no witnesses fo collect and pay. It 
 has no burden cast upon it, no duty to perform, except to act 
 -as temporary stakeholder, to await the determination of a court, 
 in an action in which the county has no interest. 
 
 The argument of public policy as to inconvenience to the 
 county and its officers does not reach our mind with sufficient force 
 to impair another view of law and of right that is recognized 
 throughout the civilized world ; that is, that debtors should pay 
 their debts. This, of course, with the modification that the means 
 of livelihood should be left to the debtor, which view is embodied 
 in the laws of exemption from execution; which in this state are 
 very liberal. The debtor's earnings for thirty days prior to the 
 levy of a writ are exempt from seizure. The servant of the county 
 is thus secured in his support, if he earns it, and the county is not 
 liable to lose the services of competent officers. Indeed, it has 
 never been observed that a county has difficulty in obtaining em- 
 ployees to do its work, and the county may surely obtain as good 
 
128 AGAINST WHOM AVAILABLE. 
 
 service from those who pay their debts as from those who avoid 
 such payment, and are protected in the avoidance by the unsatis- 
 fying doctrine of pubhc policy. 
 
 We conclude that there is no substantial argument from pub- 
 lic policy which requires us to read the law as to garnishment of 
 counties differently from what its letter seems to us to declare. 
 Counties are not exempted from garnishment by statute. On the 
 contrary, their liability to the process is within the letter of the 
 law. We find nothing in the spirit or the doctrine of public policy 
 which induces us to add to or take from the letter. The judgment 
 of the District Court is reversed, and the cause is remanded, with 
 directions to that court to enter judgment in favor of the plaintiff 
 for $210.40, and interest at the rate of ten per cent per annum from 
 the twelfth day of March, 1888, and for the costs of this appeal. 
 
 Reversed. 
 I believe the above case gives the best discussion of both sides of 
 this vexed question of any reported, but that the majority of the decis- 
 ions are against the view taken above. However they are quite evenly 
 divided. I have collected the authorities in Rood, Garnish. §§ 18--24. In 
 Michigan a school district which attempted to waive the privilege was 
 obliged to pay again. School Dist. No. 4 of Marathon v. Gage, 39 Mich. 
 484, 33 Am. Rep. 421. Contra, Skelly v. Westminster School Dist., 103 
 Gal. 652, 37 Pac. 643. 
 
 6. STATE AND NATIONAL GOVERNMENTS. 
 
 A. As Principal Debtors. 
 
 CARTER V. STATE. 
 42 Louisiana An. 927, 21 Am. St. 404, 8 South. 836. (1890) 
 
 Right to Sue State, Permission, Right to Execution on Judgment — Con- 
 stitutional Law, Division of Governmental Functions, 
 Delegation of Powers. 
 
 Land & Land and A. H. Leonard, for Plaintiff and Appellant. 
 
 /. Henry Shepherd, District Attorney, for Defendant and 
 Appellee. 
 
 The Court by Fenner, J. By an act of the General Assembly, 
 No. 81 of 1884, plaintiff was authorized to. sue the State of Louisi- 
 ana for a certain indebtedness alleged to be due under a contract 
 with the state. In accordance therewith he brought his suit and 
 
STATE AND NATIONAL GOVERNMENTS. l29 
 
 recovered a judgment against the state in March, 1885, which be- 
 came final without appeal. He. alleges that at the session of the 
 General Assembly in 1886 and at the subsequent session in 1888 
 he applied for an appropriation to satisfy his said judgment by 
 bills for that purpose introduced by members, which said bills were 
 defeated, and that his only remedy for ~ the enforcement of his 
 rights under said judgment is by the exercise of the judicial power. 
 
 He avers that the state owns property, rights and credits, 
 which form no part of its annual revenues, derived from taxation 
 for the support of the government, and which are not exempt from 
 seizure and sale, and that he has the right to execute his judgment 
 by seizure and sale thereof under the usual process. 
 
 He prays, therefore, that the state be cited through her Gov- f 
 ernor and that, after due proceedings, there be judgment decree- 
 ing that a writ of execution or Heri facias issue on said judgment 
 against the state commanding the seizure and sale of any of her 
 property not forming part of her annual revenues derived from 
 taxation, to an amount sufficient to pay and satisfy said judgment. 
 
 The state appeared bv counsel and filed an exception of no 
 cause of action, and from a judgment sustaining said exception 
 the plaintiff brings the present appeal. 
 
 The learned counsel of plaintiff fully and frankly concedes 
 the principle, now fortunately too firmly established by repeated 
 judicial decisions to admit of further controversy, that a state of 
 this Union can not, directly or indirectly, be sued by its own citi- 
 zens, or by the citizens of other states or of foreign nations, either 
 in its own courts or in the federal courts, without its consent. His 
 contention, as we understand it, is that the State, in this case, has 
 consented to be sued, and that the effect of such consent is to sub- 
 ject the state [pjj] to the judicial power and jurisdiction, not only 
 for the purpose of entertaining, hearing and deciding the suit, but 
 also for the purpose of executing and enforcing the judgment by 
 the seizure and sale of the property of the state and by applying 
 the proceeds to the satisfaction thereof. Our answer to this con- 
 tention is twofold, viz. : * * * 
 
 I. Legislative acts authorizing individuals to sue the state 
 upon claims which the legislature, for any cause, does not see fit 
 
130 AGAINST WHOM AVAILABLE. 
 
 to recognize and pay, have been of common occurrence in this and 
 in other states. Their purpose and effect, as commonly under- 
 stood, are undoubtedly nothing more than to refer to the judiciary 
 the settlement of the questions of law and fact involved in the 
 claims, and the determination, in the form of a judgment, of the 
 rights of the parties. It is implied, as a matter of course, that the 
 legislative power, after making such a reference, will accept and 
 abide by the judicial determination, will recognize the judgment 
 rendered as final and conclusive, and will, in due and ordinary 
 course, make provision for the satisfaction thereof. That such 
 was the interpretation of his remedy adopted by the plaintiff him- 
 self is evinced by his application to successive General Assemblies 
 for an appropriation to satisfy his judgment. 
 
 But to assume that, by consenting to be sued, the legislature 
 intended to abdicate its constitutional function of controlling and 
 administering the public funds and property and of appropriating 
 them to such lawful purposes as it may deem best, and to delegate 
 to the judicial department the power of seizing such property and 
 applying it to the payment of a particular debt, would be, beyond 
 measure, rash and unjustifiable. No such intention is expressed 
 in the act or can be fairly implied from its terms ; and we consider 
 it beyond question that no such ever entered into the mind of any 
 member of the legislative body. The incidents and appurtenances 
 of ordinary jurisdiction have no application to a case like this. 
 Undoubtedly jurisdiction [p32] granted to render judgments be- 
 tween parties subject to judicial power and control implies power 
 to execute such judgments. But the sovereign is not subject to 
 judicial power and control, except just so far as it has consented 
 thereto ; the moment the limit of that consent is reached the judi- 
 ciary must instantly halt. Satisfied as we are that the legislature 
 has not consented and did not intend to consent to the execution 
 of this judgment by writ of iieri facias, we are bound to deny such 
 remedy. 
 
 Counsel asks, of what use is the power to render judgment 
 against the state, if the court is powerless to execute the judg- 
 ment ? That question was anticipated by Mr. Hamilton in the dis- 
 cussion of the Constitution of the United States before its final 
 
STATE AND NATIONAL GOVERNMENTS. 131 
 
 adoption. "To what purpose," he asked, "would it be to authoriza 
 suits against sovereign states for the debts they owe ? How could 
 recoveries be enforced? It is evident that it could not be done 
 without waging war against the contracting state." Federalist 
 No. 8i. He never dreamed that authorizing suit against a state 
 would imply the right to issue fieri facias on the judgment. 
 
 Puffendorif says : "And if the prince gives the subject leave 
 to enter an action against him in his own courts, the action itself 
 proceeds rather upon natural equity than on municipal laws. For 
 the endxitthe action is not to compel the prince to observe the con- 
 tract, hut to pjrjSMude^iim.'' In England claims against the Crown 
 might be prosecuted before certain courts in the form of petitions 
 of right, with the consent of the King, but it was held by Lord 
 Mansfield that "if there were a recovery against the Crown, appli- 
 cation must be made to Parliament, and it would come under the 
 head of supplies for the year." Macbeth v. Haldimand, i Durn. 
 & East, 172. 
 
 We have examined all the authorities quoted by counsel and 
 find none of them to support his contention. We are quite cer^ 
 tain that no precedent exists sustaining the issuance of a fl. fa. on 
 a judgment against a sovereign state in her own courts, though 
 rendered with her own consent. The only recourse for satisfac- 
 tion is by application to the legislature, with whom the judgment 
 should surely have great persuasive force, but none compulsive. 
 
 1933'] 
 
 2. We are quite satisfied that, if the legislature had expressly 
 authorized the court to execute this judgment by the issuance of 
 the writ of fi. fa., and the seizure and the sale of the property of 
 the state for its satisfaction, such action would have been uncon- 
 stitutional, null and void. Articles 14 and 15 of the Constitution 
 divide the powers of government into three distinct departments, 
 and provide that "no one of these departments, nor any person or 
 collection of persons holding office in any one of them, shall exer-. 
 cise power properly belonging to either of the others." 
 
 The fiscal affairs of the state, the possession, control, admin- 
 istration and disposition of the property, funds and revenues of the 
 state are matters appertaining exclusively to the legislatiye depart- 
 
132 AGAINST WHOM AVAILABLE. 
 
 ment. Except in so far as the Constitution itself has appropriated 
 them to particular purposes, the legislative department has exclu- 
 sive control of them. No debt of the state can be paid without 
 an appropriation, and the Constitution provides the manner in 
 which alone appropriations shall be made. The judicial depart- 
 ment is vested with no right or authority^ over such matters di-" 
 rectly or indirectly. If the legislature, in authorizing the judi- 
 ciary to entertain suits and render judgments against the state, 
 should add the authority to execute the same by seizure and sale 
 of the state's property and the application thereof to the payment 
 of the debt recognized by the judgment, it would be delegating to 
 the judicial department powers exclusively vested in the legisla- 
 tive department, in violation of the express prohibition of the Con- 
 stitution. The giving to the exercise of such powers the form of 
 judicial process would not destroy its essential character. It 
 would still be in effect the exercise of the purely legislative power 
 of disposing of, and appropriating the property and funds of the 
 state to the payment of a particular debt of the state. Such pow- 
 ers the judiciary and all members thereof are prohibited from ex- 
 ercising, with or without the legislative consent. 
 
 If the legislature could delegate such power in one instance, 
 it might refer all public creditors to the courts for satisfaction, and 
 shoulder on the judiciary the whole burden of distributing the 
 state's property and funds amongst them in a concursus. We will 
 
 not further elaborate the subject. 
 
 Judgment ofRrmed. 
 
 B. As Garnishees. 
 
 BUCHANAN v. ALEXANDER. 
 45 United States (4 Howard) 20. (1846) 
 
 Garnishment against Uhited States — Ignoring Government and Pro- 
 ceeding against Officer — Delivery to Agent with Direction to 
 Pay, Title to Money, Liability to Process against Payee. 
 
 Attachment by James Alexander against McKean Buchanan, 
 purser of the frigate Constitution, as garnishee of a seaman there- 
 on, who owed the plaintiff for board. From a judgment against 
 the garnishee, he brings error. Reversed. 
 
 The Court by McLean, J. * * *The important question is, 
 
STATE AND NATIONAL GOVERNMENTS. 133 
 
 whether the money in the hands of the purser, though due to the 
 seamen for wages, was attachable. A purser, it would seem, can- 
 not, 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 legiti- 
 mate and appropriate object, the same thing may be done as re- 
 gards 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 prin- 
 ciple is to refute it. No government can sanction it. At all times 
 it would be found embarrassing, and under some circumstances 
 it might be fatal to the public service. 
 
 The funds of the government are specifically appropriated to 
 certain national objects, and if such appropriations may be di- 
 verted and defeated by state process or otherwise, the functions of 
 the government may be suspended. So long as money remains 
 in the [21] hands of a disbursing officer, it is as much the money 
 of the United States, as if it had not been drawn from the treas- 
 ury. Until paid over by the agent of the government to the per- 
 son entitled to it, the fund cannot, in any legal sense, be considered 
 a part of his effects. The purser is not the debtor of the seamen. 
 
 It is not doubted that cases may have arisen in which the gov- 
 ernment, as a matter of policy or accommodation, may have aided 
 a creditor of one who received money for public services ; but this 
 cannot have been under any supposed legal liability, as no such 
 liability attaches to the government, or to its disbursing officers. 
 
 We think the question in this case is clear of doubt, and re- 
 quires no further illustration. The judgments are reversed at the 
 costs of the defendants, and the causes are remanded to the state 
 court, with instructions to, dismiss the attachments at the costs of 
 
 the appellees in that court. 
 
 Reversed. 
 
134 AGAINST WHOM AVAILABLE. 
 
 ?. AGAINST WHOM REPLEVIN LIES. 
 
 HALL V. WHITE. 
 io6 Massachusetts 599. (1871) 
 
 rteplevin by Mortgagor, Breach of Condition — Importance of Posses- 
 sion and Right to Return — Replevin Concurrent 
 with Trover and Trespass-. 
 
 Replevin by Thirza A. Hall against George W. White, Ger- 
 ard C. Tobey, John W: Beals and Thomas Hussey to recover 
 clothing and furniture which plaintiff had mortgaged to Beals & 
 Ricker, and which White, a deputy sheriff acting as messenger 
 for a creditor of Beals & Ricker, had seized, after breach of con- 
 dition of the mortgage, and afterward surrendered to said Tobey 
 and Beals as assignees in insolvency of said Beals & Ricker, and 
 which said Tobey and Beals had then stored in the warehouse of 
 said Hussey. Case submitted on agreed facts. 
 
 /. B. Goodrich and H. J. Edwards, for the plaintiff. 
 
 B. F. Brooks and /. D. Ball, for the defendants. 
 
 The Court by Ames, J. "Replevin cannot be maintained, in 
 this Commonwealth, against a person who has no possession or 
 control of the goods to be replevied ; replevied goods cannot be re- 
 stored and returned to a person from whom they were never taken, 
 and such person cannot rightfully be made a defendant, sole or 
 joint, in an action of replevin." Richardson v. Reed, 4 Gray, 441. 
 The plaintiff, therefore, clearly cannot maintain her suit against tlie 
 defendant White. He had ceased to have any possession or con- 
 trol of the property for more than two months before the date of 
 the plaintiff's writ. If there had been anything irregular or tor- 
 tious in his proceedings as messenger, the plaintiff must seek her 
 remedy in some other form of action. {6oi'\ 
 
 With regard to the other defendants, her claim seems to be 
 also without any legal foundation. * * * The property was right- 
 fully in their possession, subject to redemption by the plaintiff 
 by payment of the mortgage debt at any time before actual fore- 
 closure in due form of law. 
 
 Judgment for the defendants. 
 
Vn. CONCURRENT USE OF SEVERAL PROCESSES. 
 
 MILLER V. PARNELL. 
 2 Marshall 78, 6 Taunton 370, i Eng. Com. Law 658. (1815) 
 
 Fieri Facias and Capias — Concurrent — Use of Both — Election, Wiien. 
 
 This decisian was rendered in the En^ish Court of Common Pleas,, 
 the judges at the time being Gibbs, CJ., Heath, Chambre and Dallas, JJ. 
 
 Rule nisi to discharge Parnell out of custody, he having been 
 taken on ca. sa. after plaintiff had sued out and levied ft. fa. Rule 
 made absolute. 
 
 Per curiam. No doubt, a plaintiff having sued out a writ of 
 fteri facias, may, if he pleases, omit to execute the fteri facias, and 
 take out a writ of capias ad satisfaciendum, and execute that be- 
 fore the fteri facias is returned or returnable. But there is, also^ 
 no doubt that if the plaintiff does execute his fteri facias, he 
 cannot have a writ of capias ad satisfaciendum till the iieri facias 
 i& completely executed and returned. This is a middle case. So 
 far as the defendant is concerned, the goods, to the extent of their 
 value, have been levied ; and the question is, whether the plaintiff, 
 after taking them, may change his mind, and sue out a writ of 
 capias ad satisfaciendum without returning his former writ. If 
 [372] this might be, it would confer a power that might be much 
 abused. If the fteri facias be returned, there is something to bind 
 the plaintiff, and to limit for how much he shall have the body, by 
 showing how much he has already gotten. If a plaintiff might 
 take goods under a fteri facias, and hold them a month, or the 
 greater part of the long vacation, and then change his mind, and 
 say, "I will not sell, but will take the body of the defendant under a 
 capias ad satisfaciendum," it might be the engine of very great op- \ 
 pression. The plaintiff may, by the practice of the court, sue out '• 
 both these processes together, if he will, and may use either the 
 one or the other, as he sees advisable, but by using the fteri facias^ 
 first, he makes his election, and having so elected, he cannot use 
 
136 CONCURRENT USE OF PROCESSES. 
 
 the other process, till after the return of the first. We, therefore, 
 
 think, that this writ of capias ad satisfaciendum being sued out 
 
 after the fieri facias had issued, and after the sheriff had taken, the 
 
 goods under it, and before its return, cannot be supported. Rule 
 
 absolute, but on the terms of bringing no action against the sheriff. 
 
 Very similar facts and ruling in Cutler v. Colver, 3 Cowen (N. Y.) 
 30. 
 
 PRIMROSE V. GIBSON. 
 2 Dowling & Ryland 193, 16 Eng. Com. Law 78. (1822) 
 
 Fieri Facias and Capias — Concurrent — Use of Both — Election, When. 
 
 This decision was rendered by the English Court of King's Bench, the 
 judges being Abbott, C.J., Bayley, Holroyd and Best, JJ. 
 
 The question in this case was, whether a^ ca. sa. against the 
 person, and a fi. fa. against the goods of the defendant, might both 
 issue at the same time. It appeared that the sheriff's officer, hav- 
 ing both writs delivered to him, went to the defendant's house for 
 the purpose of taking him in execution on the ca. sa., and, not be^ 
 ing able to find him, took his goods in execution under the fi. fa.; 
 and on showing cause against a rule for setting aside the execu- 
 tion for this alleged irregularity. 
 
 The Court said, there was nothing irregular in the proceed- 
 ings, both writs might run together, and therefore discharged the 
 rule, with costs. 
 
 PONTIUS V. NESBIT. 
 40 Pennsylvania St. 30.9. (1861) 
 
 Concurrent Garnishments, under Different Statutes — Simuitaneous use. 
 
 Rule obtained by Mary Hayes, as garnishee in above action, 
 to show cause why the attachment execution against her should 
 not be quashed. From an order making the rule absolute plaintiff 
 brings error. Reversed. 
 
 Plaintiff had issued attachment-execution under Act of 1836, 
 § 35, and served it on the Lewisburg Bank, but finding defendant 
 had no deposits there, had issued this attachment under § 32 of 
 the same act, with a view of attaching stock of said bank, owned 
 by defendant, but held in the name of Mary Hayes, with which 
 writ she was served. 
 
CONCURRENT USE OF PROCESSES. 137 
 
 The Court by Woodward, /. * * * The court, on motion, set 
 aside the latter writ, on the ground that the former one had not 
 "been abandoned or discontinued, and that plaintiff was not entitled 
 to two attachments at the same time. * * * [311] * * * The ; 
 only objection to it was the pendency of the prior attachment. 
 That was no valid objection. Both writs of attachment were exe- 
 cution process ; and the general rule is that you way have as many 
 forms of execution as the law will afford, and may pursue them 
 •all at the same time until satisfaction be obtained on one of them. 
 Before imprisonment for debt was abolished, a ca. sa., a H. fa., and 
 an attachment-execution might all be out at one and the same time, 
 We see no irregularity in the practice in this case, but if there were 
 any, it was obviated by the discontinuance of the first attachment^ 
 on the same day the court set aside the second. 
 
 The judgment is reversed, and the record remanded, with 
 a procedendo. 
 
 SPRING V. AYER. 
 23 Vermont 516. (1851) 
 
 Execution against Cr.rnishee after Execution against Principal De- 
 fendant. 
 
 ■ • Trustee process by Spring against Ayer, principal debtor, and 
 against Smith as his trustee. Having obtained judgment against 
 Ayer, plaintiff had execution issued against him, and thereon 
 seized and sold property the proceeds of which partly satisfied the 
 judgment. Smith, against whom judgment had not yet been ren- 
 dered, claimed this was a . discontinuance of proceedings against 
 him. From judgment against the trustee he appeals. Affirmed. 
 
 The Court by RedHeld, /. * * * If the plaintiff has obtained 
 valid, legal satisfaction of any portion of his debt, and that appears 
 in the case, he could not regularly obtain execution here, against 
 the trustee, for anything more than the balance. * * * [51S] The 
 party, under the existing statutes, is entitled to attach the goods, 
 effects and credits in the hands of trustees, and also in the defend- 
 ant's possession; and he must of course have execution against 
 both, at some time; and why these executions against different 
 persons should necessarily be contemporaneous, I do not well see. 
 
138 CONCURRENT USE OF PROCESSES. 
 
 * * * We perceive no incongruity here in the creditor having his 
 execution against the principal defendant, as soon as his judgment 
 is perfected, if he will move the court to that effect. Perhaps as 
 matter of course he ought not to be required to proceed, at the peril 
 of losing his lien, until the entire suit is ended. But if, in the 
 present case, the issuing of the execution is to be regarded as pre- 
 mature, it could only become, in consequence, irregular and void 
 [voidable] , to be set aside on motion, or process for that purpose, 
 but valid so long as it remains on record and acquiesced in by the 
 other party. * * * 
 
 Judgment affirmed. 
 
 SUTTON V. HASEY. 
 
 58 Wisconsin 556, 17 N. W. 416. (1883) 
 
 Garnishment after Levy under Execution. 
 
 Garnishment on execution by Sutton, the judgment creditor, 
 against Hasey to charge him as garnishee of Chapman, the judg- 
 ment defendant, for property claimed to be held by Hasey bj' 
 fraudulent transfer. From judgment charging the garnishee he 
 brings error. Affirmed. 
 
 The Court by Taylor, I. * * * It is objected that the plaintiff 
 
 should not recover in this proceeding, because, after the same was 
 
 properly commenced under the provisions of § 2753, R. S. 1878 
 
 a second execution was issued on the judgment against Chapman. 
 
 and property levied upon sufficient to satisfy the execution. We 
 
 do not think this objection is ;well taken. The judgment against 
 
 Chapman had not been paid, and the property levied upon had 
 
 been replevied by the appellant. It is true, appellant had given a 
 
 bond to answer for the value of the property in case it should be 
 
 determined that the sheriff was entitled to hold the property seized 
 
 on his execution to satisfy Chapman's debt. If, however, Hasey 
 
 should be compelled to pay the amount of the Chapman judgment 
 
 in this proceeding, and on the trial of the replevin action the sheriff 
 
 should succeed, he could only recover damages against Hasey for 
 
 the amount unpaid on the judgment, and if it were all paid, he 
 
 would either be defeated in that action or recover only nominal 
 damages. 
 
 There does not seem to be any objection to the plaintiff's pur- 
 
CONCURRENT USE OF PROCESSES. ISO' 
 
 suing both these remedies at the same time. If the proof showed 
 a seizure of sufficient property upon the execution to satisfy the 
 judgment against Chapman, — and there was no dispute as to the 
 ownership of the property so seized, or its liability to be applied in 
 payment of the judgment, — there would be reason for holding thai 
 no judgment should be [56^] rendered against the defendant in 
 the garnishee proceedings until it was ascertained whether such 
 levy would discharge the judgment. In such case the proper 
 course would be to get a stay of proceedings in the garnishee ac- 
 tion until the result of the proceedings upon the execution was as- 
 certained. * * * 
 
 The judgment of the circuit court is afHrmed, 
 
 ADAMS V. SMALLWOOD. 
 8 Jones Law (North Carolina) 258. (i860) 
 
 Several , Simultaneous Fieri Facias to Different Counties— RigKt or 
 Privilege — Of Course or on Motion — Safe Guards, Duty of Court. 
 
 Motion by Adams to set aside his execution to Guilford Co. 
 on his judgment against Smallwood and Hiatt on the ground that 
 the judgment had been satisfied by a sale of Smallwood's property 
 on an execution issued to Halifax Co. at the same time that the 
 other writ issued. The motion was opposed by Smith, to whom 
 Hiatt's house in Guilford had been sold on the execution to that 
 county. From an order granting the motion Smith was allowed 
 by the court to appeal. Affirmed. 
 
 The Court by Manly, J. It is believed to be within the 
 power of a plaintiff, who has judgment, to siie out a writ of fieri 
 facias, and before return day, nothing being done, to return it into 
 the office and sue out another, but it is not within his power to take 
 two writs at the same time, without special leave from the court. 
 It was, therefore, irregular and without any warrant of law, that 
 the two writs of iieri facias were sued out in this case. All that 
 is decided, as we conceive, in the case of McNair v. Ragland, 2 
 Dev. Eq. 42, is in conformity with the above. 
 
 It was competent, therefore, for the court, upon its own mo- 
 tion, to have quashed at least one of the writs. It was especially 
 proper for it to do so, after one was satisfied. The judgment 
 
140 CONCURRENT USE OF PROCESSES. 
 
 thereby became extinct, and the fieri facias was consequently de- 
 prived of all legal vitality. 
 
 It might, occasionally, conduce to the ends of justice to be 
 allowed to take out more than one execution at a time ; and, upon 
 proper suggestions as to its expediency, and satisfactory assur- 
 ances that it would not be urged for the purposes of oppression or 
 fraud, the court would allow it. The writs in such case would be 
 put into action upon the responsibility of the party suing them out, 
 but this responsibility would not dispense the court from the duty 
 of seeing that the objects were apparently legitimate and from 
 guarding, as far as possible, against a misuse of the process. It 
 is a power, in other words, which the court ought to put into the 
 hands of plaintiffs sparingly and with caution. 
 
 Judgment affirmed. 
 
 Two fi. fas. being similarly issued against defendants similarly 
 situated, one only was levied and an injunction against it was dissolved 
 on appeal, tlxe court by Martin, J.,, saying: "This mode of proceeding 
 was certainly more expeditious than correct. Nothing in our jurispru- 
 ■dence authorizes two executions issuing at the same time on one judg- 
 ment, whatever be the number of persons against whom it may have 
 been obtained. * * * If one of the executions issued after the first 
 the irregularity is in the second only, and nothing ought to prevent the 
 execution- of the first. If they be issued simultanfeously, and one of 
 them, alone, as in the present case, be acted upon, the execution of the 
 second, if attempted may be enjoined. But neither justice nor equity 
 forbid proceedings on the other." Hudson v. Dangerfield, 2 La., 63, 20 
 Am. Dec. 297. 
 
 In McNair v. Ragland permission was granted on motion to sue out 
 several fi. fas. to different counties at the same time. 
 
 For further authorities on the subject of this chapter see Freeman 
 on Ex., § 31, and Rood, Garnish. § 185. 
 
VIII. WHAT COURTS MAY ISSUE THE PROCESSES. 
 
 1. Without the Transcript Statutes, 141. 
 
 A. To Enforce Their Own Judgments, 141. 
 a. The Common Law Processes, 141. 
 
 6. The Statutory Processes, Unknown to the Common Law, HI. 
 
 B. To Enforce the Judgments of Other Courts, 142. 
 
 2. Under the Transcript Statutes, 145. 
 
 1. WITHOUT THE TRANSCRIPT STATUTES. 
 A. To Enforce Their Own Judgments. 
 
 a. THE COMMON LAW PROCESSES. 
 
 See Kentzler v. Chicago, M. & St. P. Ry. Co., post, p. 149, and Uni- 
 ted States V. Drennen, ante, p. 94. 
 
 b. THE STATUTORY PROCESSES/ UNKNOWN TO THE COMMON 
 LAW. 
 
 SEA WELL V. MURPHY. 
 3 Tennessee (Cooke) 478. (1814) 
 
 Garnishment — Jurisdiction — Statutes Construed — Premature Judgment 
 against Garnishee. 
 
 Action commenced by attachment before a justice of the peace 
 by Murphy against David Thomas in which Seawell was sum- 
 moned as garnishee. No judgment having yet been rendered \ 
 against Thomas, judgment was rendered against the garnishee on 
 his answer, and on certiorari by him to the county court was af- i 
 firmed. From this judgment he appealed to the circuit court, 
 where the judgment was again affirmed, and he now brings the 
 case here by writ of error. Reversed. 
 
 Whiteside, for appellant. 
 
 Cooke, for appellee. 
 
 The Court by White, J. We have looked into this record 
 with some anxiety for something that would enable us to think 
 with the three other tribunals who have decided this cause ; but we - 
 can find nothing, and are constrained to believe that the law has 
 been mistaken by the circuit court. 
 
 I. Because no judgment has been given aga:inst the original 
 
142 WHAT COURTS MAY ISSUE 
 
 defendant, nor has there been any debt estabHshed against him. 
 If this judgment is suffered to stand, Murphy may receive the 
 money from Seawell when Thomas may not owe one cent. 
 
 2. The Act of 1794, I Hay. Rev. 194, furnishes the only au- 
 thority which a justice of the peace has to proceed by way of at- 
 tachment on a case within his jurisdiction. The fifty-sixth sec- 
 tion requires that the attachment should be levied on property ; but 
 it gives no power to summon a garnishee. The twenty-second 
 section, which authorizes the summoning of a garnishee, is con- 
 fined to attachments in a court of record. We do not see how 
 effect to the provisions of this section could be given by a justice 
 •of the peace. And as the attachment law points out a mode by 
 which judgments may be recovered without personal notice to the 
 defendant, we do not feel authorized to extend its provisions by 
 construction. 
 
 Reversed. 
 
 Lewis V. Seroomb, 1 Wis. 394, is a very similar case. For further 
 decisions on this point see Rood, Garnish. § 223. 
 
 B. To Enforce the Judgments of Other Courts. 
 
 CLARKE V. MILLER. 
 18 Barbour Sup. (New York) 269 (1854) 
 
 Sheriff's Deed, Validity — Proof of Judgment and Execution — Effect of 
 Invalid Execution — Power to Cure Defect by Amendment. 
 
 This decision was rendered in the Sixth Judicial Circuit of Supreme 
 Court of New York at the Delaware general term in July; Crippen, Shank- 
 land and Mason, JJ. 
 
 Ejectment by Miller against Clarke. From judgment for 
 plaintiff at a special term defendant appeals. Reversed. 
 
 Dana & Beers, for appellant. 
 
 Ferris & Gushing, for appellee. 
 
 The Court by Mason, J. This is an action of ejectment, and 
 the plaintiff made his title through a judgment, execution and 
 sheriff's deed. The judgment was recovered on the 7th day of 
 May, 1846, in the court of common pleas of Tompkins county, in 
 favor of the Tompkins County Bank, against Andrew W. Knapp 
 and Birdsey Clarke, for $116.23. ^^ J^lyj 1849, an execution was 
 
WITHOUT TRANSCRIPT STATUTES. 143 
 
 issued out of the supreme court, upon said judgment, to the sheriff 
 of Tompkins, who sold the premises thereon; and the fifteen 
 months having expired, the sheriff, on the ist day of January, 
 185 1, gave to the purchaser a deed, which recited that the execu- 
 tion issued out of the supreme court. After the commencement 
 of the present action, the county court [2/0] of Tompkins granted 
 an order amending the execution, the sheriff's certificate of sale, 
 and the sheriff's deed, so as to make the execution issue out of the 
 county court of Tompkins, instead of the supreme court; and the 
 sheriff, after his term of office had expired, in pursuance of said 
 order, erased the words, supreme court, and inserted Tompkins 
 county court, in the reciting part of said deed, and after the deed 
 had been delivered, and without any new acknowledgment thereof. 
 These facts all appeared before the execution and sheriff's deed 
 were offered in evidence ; and when offered, the defendant's coun- 
 sel objected to the execution and sheriff's deed, in consequence of 
 such alterations. The judge at the circuit overruled the objec- 
 tion and admitted them in evidence, and held the title acquired by 
 the purchaser under them to be good. 
 
 The judge at the circuit most clearly erred. A sheriff's sale 
 of land is within the statute of frauds, and requires a deed, to pass 
 the title to the purchaser. Jackson v. Catlin, 2 John, 248. And 
 a sheriff's deed is not admissible in evidence, without showing the 
 judgment and execution under which he sold. Bowen v. Bellj 20 
 John. 338. The sheriff's deed not being admissible, without pro- 
 ducing the judgment and execution, I do not see upon what prin- 
 ciple, it could be admitted at all. The rule is a familiar one, thath 
 judgments must be executed in those courts in which they are ren- 
 dered. 3 Bacon's Abr. 715, tit. Execution, E. I do not see upon 
 what principle the supreme court could assume to execute this 
 judgment, recovered in the common pleas. The supreme court pos- 
 sessed no power to award a fieri facias upon that judgment, and 
 every execution that is issued by the attorney is regarded in law 
 as awarded by the court out of which it issues, just as much as if 
 the award was made upon the record. It strikes me as a strange 
 proceeding, for the supreme court to award an execution to the 
 sheriff, commanding him to collect a judgment of the county 
 
144 WHAT COURTS MAY ISSUE 
 
 court ; and I entertain no doubt but such an execution is absolutely 
 void. But what is more strange still, after the sheriff has exe- 
 cuted it and sold the lands of the defendant and given a deed to 
 the purchaser, the county court assume to say : "We will interfere 
 with [2/1] the process of the supreme court, because that court 
 has undertaken to execute our judgment;" and so, by an order, 
 the county court change, I suppose, an execution of the supreme 
 court which has been fully executed and returned, into a process 
 of the county court, and declare, in effect, that the child is theirs, 
 although they had no hand in begetting it. The rule is a familiar 
 one, that every court can amend its own process. It is said to be 
 a power incidental to every court. It is no more than assuming 
 the power to correct its own proceedings ; but I am not aware of 
 any power in the county court to amend the process of the supreme 
 
 i court. This process, being void, is not amendable. Bunn v. 
 Thomas, 2 John. 190 ; Burk v. Barnard, 4 Id. 309 ; Miller v. Greg- 
 ory, 4 Cowen, 504; Chandler v. Becknell, Id. 49. In Simon v. 
 Gurney, (i Marsh. 237, 5 Taunton, 605, i Petersdorfs Abr. 595), 
 where a fieri facias was issued upon a judgment in the common 
 pleas, returnable in the king's bench, but the writ was tested in the 
 name of the chief justice of the common pleas, the court allowed 
 the writ to be amended, by making it returnable in the common 
 pleas ; placing their decision upon the express ground that, as the 
 writ was tested in the name of the chief justice of the common 
 pleas, there was something to amend by. The reason why void 
 process cannot be amended is, there is nothing to amend by. All 
 the cases hold the very sensible language, that when there is noth- 
 ing to amend by, the court have no power of amendment. In this 
 case, the writ issuing out of the supreme court, and returnable in 
 
 \ that court, there is nothing in the county court to amend by. The 
 county court could not amend anything that has been done in that 
 court towards the execution of their judgment, for nothing has 
 been done in that court. The execution being void in the hands 
 of the sheriff, all that was done under it is of no effect. As a con- 
 sequence, the sheriff's certificate is a mere nullity, and so was his 
 deed. * * * [2/2] * * * I am of opinion that, for these reasons, 
 without considering the other questions in the case, the judgment 
 
UNDEK THE TKANSCRIPT .SXAT.UTES. JA5 
 
 of rbbie circuit court should be xeversed and a new trial granted ; 
 costs to abid-e the event. 
 
 Reversed, 
 2. UWDER T'H€ iTRAtMSCRllPTT STATUTES. 
 
 RAHM V. SOPER. 
 ^8 Kansas 529. .(i8S^) 
 
 Process on Justice's Judgment after Transcript Docl<eted in Court of 
 Etecord-^Garnishnfient as a Defense to Action by Creditor. 
 
 Action commenced in justice court by Frank Rahm against 
 R. B. Soper, his tenant, to recover rent. Soper defends on the 
 ground that, after the rent accrued and before plaintiff purchased, 
 Soper was summoned as garnishee of plaintiff's grantor, Eliz. H. 
 Hook, on a judgment against her in favor of T. J. Stout. From 
 judgment ifor defendant by the district court on appeal, plaintiff 
 brings error. Reversed. 
 
 Lucien Baker and Wm. C. Hook, for appellant. 
 
 Wm. Dill, for appellee. 
 
 The Coihi/rt by Horto.n, C. J. The judgment of T. J. .Stout 
 against Elizabeth 'H. Hook was rendered before a justice of the 
 peace of Leavenworth county in 1878, and in the same year an 
 abstract of that judgement was docketed in the district court of 
 Leavenworth county, under § 119 of the justices' act. The gar- 
 xiishment proceedings against R. B. Soper were commenced on 
 March 21, 1I881, before the justice rendering the judgment, and 
 long subsequent to the docketing of the abstract in the district 
 court. It was held in Tr,eptow v. Biuse, 10 'Kas. 170, that the filing 
 .'Otf an abstiact lin the district court has the same force as the filing 
 of the transcript of a judgment. Comp. Laws of 1879, ch. 81, § 
 119; id., ch. 80, § 518. The filing oi an abstract of a judgment 
 jienfletDed :beifoire a ijustice .of the peace .-obviiously contemplates a 
 ttransfer .of the .judgment ifcom tthe justice's court; and after -tlie 
 judgment is so teansJeaired to the district comit, klbeeooies subj-eot 
 to the same rules and vested with the same powers as though ori- 
 ginally rendered in that court. Treptoiv v. Buse, supra; Comp. 
 Laws 1879, ch. 81, § 188. {531] 
 
 Section 138 of tlie justices' act reads: "It shall be the duty 
 
 of the justice, if the case be not appealed, taken up on error, dock- 
 10 
 
146 WHAT COURTS MAY ISSUE 
 
 eted in the district court, or bail has not been given for the stay of 
 execution, at the expiration of ten days from the entry of the judg- 
 ment, to issue execution without a demand and proceed to collect 
 the judgment, unless otherwise directed by the judgment creditor." 
 
 Within the express terms of this section, after a case has been 
 docketed in the district court, it no longer becomes the duty of the 
 justice to issue execution in the absence of a demand. As the 
 docketing of the judgment in the district court transfers the judg- 
 ment to that court, and as .by such transfer it becomes subject to 
 the same rules and vested with the same powers as though origi- 
 nally rendered in that court, the judgment creditor after such 
 transfer must look to that court for the means of enforcing the col- 
 lection of the judgment, and cannot demand execution under § 137 
 of the justices' act. This certainly was the intention of the legis- 
 lature, and this construction of the statute renders the provisions 
 of the code and the sections of the justices' act concerning this 
 subject-matter harmonious. If a different view were entertained, 
 a plaintiff would have the privilege of process on the same judg- 
 ment from two courts within the same county at the same time. 
 If the judgment creditor is not deprived of the right to an execu- 
 tion before the justice after he has transferred his judgment to the 
 district court by filing an abstract, the provisions relating to re- 
 vivor in § 522 of the code are without much significance, as the 
 plaintiff might keep alive his judgment before the justice and from 
 time to time file new abstracts. As in our view the justice after 
 the filing of the abstract of the judgment in the district court had 
 not jurisdiction to issue process in the case, all of the garnishment 
 proceedings after the transfer of the judgment to the district court 
 must be regarded as nullities. * * * [552] * * * 
 
 The judgment of the district court must be reversed, and the 
 case remanded with direction to the court below to enter judgment 
 upon the agreed statement of facts for plaintiff in error. 
 
 • Reversed. 
 
UNDER THE TRANSCRIPT STATUTES. 147 
 
 BOSTWICK V. BENEDICT. 
 4 South Dakota 414, S7 N. W. 78. (1893) 
 
 Judgment of Court of Record — Transcript Docketed in Court of An- 
 other County — Execution from Latter Court — Regular, 
 Void or Voidable — Purpose of Statute. 
 
 Taubman & Potter and Little & Nunn, for appellants. 
 
 R. B. Smithers and John W. Bell, for respondents. 
 
 The Court by Kellam, J. This is an appeal from an order of 
 the circuit court of Grant county amercing appellant, as sheriff, \ 
 for non-payment of moneys alleged to have been collected by him j 
 on execution. The facts are undisputed, and are as follows : In 
 the circuit court of Roberts county, respondents Bostwick ob- ' 
 tained a judgment against one Knight, and caused a transcript to 
 be filed in the office of the clerk of the circuit court for Grant / 
 county, and thereupon caused execution to be issued by the clerk 
 of the circuit court of said Grant county to the sheriff of such 
 county; that prior to the issuance of said execution one Dewees 
 had obtained judgment in said Grant county circuit court against 
 respondents Bostwick ; that while said first execution was in the 
 hands of the sheriff as aforesaid, and before the same was col- 
 lected, he received, as such sheriff, for collection, an execution 
 issued upon the judgment of Dewees against the respondents 
 Bostwick. While so holding both executions. Knight, the de- 
 fendant in the first, paid to the sheriff the amount due thereon, and 
 directed him to apply the same on the judgment and execution of 
 Dewees against respondents Bostwick ; and he did so, paying the 
 same over to the plaintiff, Dewees. Respondents Bostwick then 
 made demand for the amount so recovered from Knight, and, pay- 
 ment being refused, brought these proceedings. * * * [4^7^ 
 * * * 
 
 Section 5104, Comp. Laws, provides that a transcript of the 
 original docket of a judgment may be taken from the county in 
 which the judgment was rendered, and filed in the office of the 
 clerk of the circuit court of any other county, and that it shall then ) 1 
 be a lien upon any real estate of the judgment debtor in said \ 
 county, but this does not authorize the clerk, of such county to 
 issue execution thereon. Execution may be issued to the sheriff ' 
 
148 WHAT COURTS MAY ISSUE 
 
 of any county where the judgment is docketed (§ 5114), but it 
 must be issued from the county where the judgment was rendered. 
 This is the evident plan of our statute. In some states the statute 
 expressly authorizes an execution to issue from any county in 
 which a transcript is filed, but ours does not, and the power does 
 not exist without -statutory authority. Freem. Ex'ns, § 14. The 
 object of our statute in allowing the filing of a transcript in an- 
 other county is, as stated in said § 5104, to make the judgment a 
 lien upon the debtor's real estate in such county. It confers no 
 authority upon the clerk of such county to issue such execution, 
 and any attempt to do so is unauthorized, and the execution is 
 void. It is so held in states having statutory provisions similar 
 to ours. See Seaton v. Hamilton, 10 Iowa, 394; Furman v. 
 Dewell, 35 Iowa, 170; Shattuck v. Cox, 97 Ind. 242. In this case 
 the execution issued by the clerk of the Grant county circuit court 
 on the transcript from Roberts county was void. It recited on its 
 face that it was issued on such transcript, and the sheriff of Grant 
 county, the appellant here, might have declined to accept it or 
 operate under it. * * * [420] * * * We think the order of the 
 circuit court amercing the sheriff was wrong and it is reversed. 
 All the judges concurring. 
 
 Reversed. 
 
IX. THE EXECUTION OF THE PROCESSES.— WHERE, 
 
 WHEN, BY WHOM, AND HOW IT SHOULD 
 
 BE MADE. 
 
 1. Where the Pbocesses Mat Run and be Executed, 149. 
 2; When- the Pbocesses Mat- be ExeoumiDj 158. 
 A. How Early. 156. 
 
 a. Before the Officer Receives the Writ, 156; 
 B. After the Officer Receives the Writ, 156. 
 li. How Late,. 156. 
 
 a. Without Liabiiity by the Officer to the Creditor, 156. 
 6. How Late the Levy and Service May be Made and be Valid,. 156. 
 c. How Late the Proceedings after Levy and Service May be Made 
 and' be Valid, 156. 
 3. By Whom the Pbocesses Mat be Executed, 157. 
 
 A. An Officer Without the Writ, 157. 
 
 B. A Person Not an Officer, 157. 
 
 C. A Person Assisting an Officer Present Having the Writ, 157. 
 
 D. J.W- Offloer Beyond the Limits of His Oounty or Preovnot, 158, 
 
 E. A Party to the Action or Person Interested, 158. i 
 
 F. An Officer to Whom the Writ is not Directed, 160. 
 4-. The Levy, 164. 
 
 A. On Land, 164. 
 
 a. Sufficiency of the Indorsement or Description to Identic the 
 Property, 164. 
 
 5. The Recording of the Levy. 164. 
 
 B. On Personalty, 164. 
 
 a. Right of the Officer Levying to Breals Doors, Etc., 164. 
 
 6. What Constitutes a Valid Lery or Seizure, 166. 
 
 c. Distinction Between the Levy and the Indorsement, 166. 
 
 d. Necessity of Seizure After Receiving the Writ, 166. 
 
 e. Necessity of Removing the Goods, 166. 
 
 f. Necessity of Indorsing the Levy on the Writ, 166. 
 
 g. Effect of Illegal Act in Obtaining the Levy, 166. 
 5. Power of- the Coubt Ovbb its Pbocesses, 167. 
 
 1. WHERE THE PROCESSES MAY RUN AND BE EXECUTED. 
 
 KENT'ZLER v. CHICAGO, MILWAUKEE & ST. PAUL RY. CO. 
 
 47 Wisconsin 641, 3 N. W. 369. (1.879) 
 
 Garnishment on Execution — Territorial Jurisdiction, at Common Law — 
 
 Constitutional and Statutory Provisions Construed — Effect 
 
 of Failure to Comply With Statute — Objection, 
 
 How Made — Proper Form of Execution, 
 
 Presumptions — Power to 
 
 Amend. 
 
 Garnishment against Ckicago, M. & St. P. Ry Co. (in form as 
 ifi on an. execution from the circuit court of Milwaukee county,, but 
 im fact) on an; execution issued by the circuit court of Dane county 
 
150 THE EXECUTION OF THE PROCESSES. 
 
 to the sheriff of Milwaukee county, on a judgment in favor of 
 Andrew Kentzler against C. S. Hardy, rendered in the- municipal 
 court of the city of Madison and recorded in the office of the clerk 
 of the circuit court for Dane county. From an order of the circuit 
 court of Milwaukee county quashing the garnishment for defects £' 
 in the garnishment affidavit and summons, plaintiff appeals. 
 Affirmed. Whether a transcript of the judgment was ever filed in 
 the circuit court of Milwaukee county does not appear, and the 
 only statement concerning it in the execution is that the judgment 
 was rendered as appears by the transcript of it filed and docketed 
 in the office of the clerk of the circuit court of Dane county, and 
 commanding the sheriff to satisfy the execution out of any prop- 
 erty "belonging to such judgment debtor on the day when such 
 transcript was so filed and docketed in your county, or at any time 
 thereafter." 
 
 The Court by Ryan, C. J. The execution on .which the pro- 
 ceeding of garnishment was taken, is returned among the 
 motion papers, and must be held to have been before the court 
 below on the motion. 
 
 It is the foundation of the proceeding. The jurisdiction, so 
 to speak, of the proceeding of garnishment rests on the execution ; ■ 
 and a defect in the execution fatal to its own validity, is equally so 
 to the proceeding taken upon it. Executio est finis et fructus 
 legis. And, by the law governing courts generally, every court 
 has inherent power to issue writs of execution on [643] its own 
 judgments, but not beyond its territorial jurisdiction. At the com- 
 mon law all process of all courts is liniited to the territory over 
 which their jurisdiction extends, and the power of any court to 
 issue extra-territorial process is not inherent in it, but comes only 
 by express statutory grant. Sir Will Harbert's Case, 3. Reports, 
 (Coke) no; Jacob's L. Diet., "Jurisdiction." 
 
 Section 8, art. VII of the constitution, declares that the juris- 
 diction of the circuit courts shall extend to all matters, civil and 
 criminal, within the state, not excepted in that instrument and not 
 prohibited by law. This is broad language, but should be con- 
 strued in the light of other provisions of that instrument establish- 
 ing the judicial system. * * * [644} * * * And all the clauses 
 
WHERE MAY RUN. 151 
 
 of the constitution, taken together, clearly limit the territorial juris- 
 diction of the circuit court, directly 'conferred by that instrument, 
 to the county in which it is held : [and] clearly design the circuit 
 court in each county to be a county court, with jurisdiction, civil 
 and criminal, limited to the county, subject to a general, perhaps 
 unlimited, power of the legislature to extend its civil jurisdiction 
 throughout the state. 
 
 The legislative and judicial history of the state shows that 
 this has been, practically, from the beginning, the construction put 
 upon the constitution by the profession and by the people. The 
 statute of June 29, 1848, providing for the first election of judges, 
 limits the civil jurisdiction of a circuit court to its own county, as 
 the jurisdiction of the territorial courts had been limited; and 
 limits its mesne process in civil actions to its proper county, per- 
 mitting such process to go to other counties only after service of 
 some of the defendants in its own county. Various provisions fol- 
 lowed from time to time, enlarging the power in civil proceedings, 
 until now mesne process in transitory actions may generally issue 
 throughout the state. * * * [<^45] * * * 
 
 So it is seen that the authority of the circuit court of Dane 
 county to issue the execution in this case to Milwaukee county 
 must come by statute. Without statutory authority, such an execu- 
 tion would be mere waste paper. 
 
 The only authority of law for issuing execution from a circuit 
 court to another county is found in § 5, ch. 134, R. S. 1858, now § 
 2971, R. S. 1878. This provides that executions against property 
 may be issued to the sheriff of any county where the judgment is 
 docketed ; and it cannot issue to another county where the judg- 
 ment is not docketed. Smith v. Buck, 22 Wis., 577. It is true 
 that the language of the opinion in this case is confined in terms to 
 such executions as affecting realty, because the question there was 
 the validity of a sale of realty. But the judgment of the court 
 extends to all executions, because the statute makes no distinction 
 between executions against realty and personalty, and gives one 
 and the same authority to issue any execution, upon one and the 
 same condition. 
 
 The docketing of a judgment in the county to which the 
 
152? THE EXECTinTON- OF THE PROCESSES. 
 
 exectitioti may g-o is therefore a condition precedent of the 
 authority to issue it ; and it is hardly necessary to say that a statu- 
 tory power upon condiition precedent cannot be executed without 
 compliance with the condition. The docketing of a judgment im- 
 another county is, so to say, jurisdictional to an execution upon it 
 to that county : as much so as a judgment to an. execution to any 
 county. And an execution issued to one county upon a judgment 
 docketed in another, but not in it, is very much like an execution 
 issued without any judgment, anywhere, to support it. 
 1 An execution, to be valid, must disclose on its face the [646] 
 
 authority to issue it. Herman's Exec.,. § 55. An execution not 
 stating a judgment to support it is void. Equally so is an: execu- 
 tion issued to another jurisdiction, not stating the condition on 
 which it may so issue. On this point Smith v. Bidck, supra, prop- 
 erly understood, is conclusive. The case is not very well reported, 
 and the opinion, perhaps, not quite accurate in terms. It did not 
 appear in that case, as might be inferred from the report, that a 
 transcript of the judgment had not been docketed in the county to 
 which the execution issued. It only appeared that the execution 
 did not so state, and on that ground the execution was excluded by 
 the court below ; and the precise point of the judgment is that the 
 execution was void for not reciting the docketing of the judgment 
 in the county to which it was issued. The fact that it was not so 
 docketed did not otherwise appear; but, because the fact was not 
 recited in the execution, the negative was probably assumed, on 
 the ground that quod non apparet non est: 
 
 The question in this case is clearly distinguishable, on sub- 
 stantial grounds, from Sabin v. Austin, 19 Wis., 421. There the 
 execution was issued to the county in which the judgment was ren- 
 dered. It recited the judgment, but not the time of docketing" it, 
 in compliance with § 8, ch. 134, R. S. 1858, now § 2969, R. S. 1878. 
 This was held to be a defect only, amendable, and rendering the 
 execution voidable, not void. A sale under the execution was 
 therefore upheld. But the issuing of the execution within the ter- 
 ritorial jurisdiction of the court was within the general power of 
 all courts, independently of statutory authority ; and § 8 went only 
 to the form of the execution, nut to the authority to to issue it. 
 
WHEKE MAY RMTSSS. Il53( 
 
 Matter of form,, in an. act done under authority, is generally 
 amendable ; not matter on which the authority rests to confer juris- 
 diction, of the act. And. a circuit court issuing, an execution defect- 
 ive in tiiisi paartliculaBr tc itia own couiraty,. has before it the actual 
 docket of the j'wefgrrrent hj wMcfi' to amend' the- 164/'! execution ; 
 but, issmng affi executicjilu to another coumty,. has not the docket of 
 the jmdgraent in' that coiamty before it — has nothing befoue it by 
 which to amend' the execration. 
 
 Nothing held or said in Jones v. Davis, 2Z Wis., 422 ; Swift v. 
 Agnes, 33 Wis., 228, or Allen v. Clark;. 36 Wis., iol,. appears to be 
 in; conflict with the views taken im this case.. 
 
 This is not the ground on: which the summons to the garnishee 
 was quashed in the' court below,, or on which the order was supr- 
 pewted by cotmsel' im this court. But, because it is a defect juris- 
 dictional to the whole proceeding of garnishment, it has been- 
 thought most fitting to rest the judgment of this court upon it.. 
 The execution was void upon its: face, would, have been no protec-l 
 tioM to the sheriff, and could support no proceeding to; collect it. / 
 The order of the court belozv is affirmed. 
 
 To- saxae- effect on tte general question see Needles v. Frost, 2 Okl. 
 19, 35 Pae. 574; Rathbun v. Hanney,, 14 Mich. 382.; Roads v. Symmes, 1 
 Ohio 281,, 13 Am. Dec. C21. 
 
 In Kentucky absence of the statutory ground for sending the writ 
 to' another county is held to render the execution a-nd sale thereon 
 "voidable, but not void, and its validity is made to depend on the inno- 
 cence of the purchaser." Sanders v. Ruddle, 2 T. B. Mon. 139, 15 Am. 
 Dec. 148. 
 
 The decision in Kentzler v. Chicago M. & St, P. Ry. Co. has been 
 criticised' by the supreme courts of Minn, and S, Dak. Failure of the 
 executions to recite the issuing and docketing of the transcript is held' 
 to be a mere irregularity and the executions taken from the clerk's 
 office before the transcript was filed in the other county, but not deliv- 
 ered to the sheriff for service till' the transcript -was filed in his county, 
 -were held valid. Mitchell, Ji. » * * "This is substantially the line of 
 reasoning advanced by Justice Ryan. * * * it seems to us more 
 severely logical than practical, and -we are by no means clear that 
 under our judicial system it is correet to say that the territorial juris- 
 diction o£ the distrlcli conirt ia limited to the' county in -which it sits, 
 espjectally in view of i87& G. S. Ch^ 64 § 3." Gowan v. Fountain, 50 Minn. 
 264, 52. N, W. 862 ; McDonald v. Fuller, S. Dak., 77 N. W. 581. 
 
154 THE EXECUTION OF TfiE PROCESSES. 
 
 TOLEDO, WABASH & WESTERN RY. CO. v. REYNOLDS. 
 72 Illinois 487. (1874) 
 
 Garnishment on Judgment — Service out of County — Garnishment as a 
 
 Suit — Statutes as to Residence Affecting Jurisdiction and 
 
 Service of Process — Appearance — Form of Judgment. 
 
 Garnishment by L. Marks against Toledo, W. &. W. Ry. Co., 
 as garnishee of T. J. Reynolds, principal debtor. From judg- 
 ment against the garnishee it brings error. Affirmed. 
 
 0. T. Reeves, for appellant. 
 
 P. E. Hosmer, for appellee. 
 
 The Court by Scott, J. In 1872, L. Marx recovered a judg- 
 ment in the circuit court of Washington county, against Reynolds, 
 on which execution was issued, and returned no property found. 
 Marx then sued out a garnishee process against the railroad com- 
 pany, which was se rved on its agent in McLean county. A plea to 
 the jurisdiction of the court was filed, "to^MtSTthe court sustained 
 a demurrer. Plaintiff in error having elected to stand by its 
 plea, the court rendered final judgment against it for the amount of 
 the judgment, in favor of Marx, against Reynolds. 
 
 It is insisted a proceeding in garnishment is an original suit, 
 and hence it is claimed it was not lawful to serve the garnishee 
 process upon an agent of the company out of the county where the 
 original suit was pending. The statute under which these proceed- 
 ings were had seems to authorize the judgment creditor to have 
 process directed to any county where any person may reside, who 
 may have money or effects in his possession belonging to the judg- 
 ment debtor. The statutory provisions are very broad and liberal. 
 It is declared it shall be lawful for the court or justice of the peace 
 before whom the original judgment had been rendered, to cause 
 any person or persons supposed to be indebted to or to have any 
 effects or estate of defendant, to be summoned forthwith to appear 
 "before said court or justice of the peace as garnishee or gar- 
 nisheess." R. S. 1845, § 38, p- 307. 
 
 The remedy given by the statute is not limited. Any person, 
 whether resident or not of the county in which the original judg- 
 ment is rendered, may be summoned as a garnishee. It is not 
 material, therefore, to determine whether a proceeding in garnish- 
 
WHERE MAY RUN. 15& 
 
 ment is to be regarded as an original' suit or [48p] a proceeding 
 in the nature of execution of the original judgment. In either 
 view, a court of general jurisdiction, by virtue of the statute giving 
 the remedy, may send its process to any county in the State where 
 the garnishee may be found. There is no difference between nat- 
 ural persons or corporations in this regard. Either may be sum- 
 moned as garnishee. It is true, a justice of the peace can not send 
 process beyond the territorial jurisdiction of such a court, as- 
 defined by statute. 
 
 The judgment in this case was obtained in the circuit court,, 
 and no reason is perceived why it could not send process of this 
 character to any county in the State. The fact the garnishee is to- 
 be summoned to appear before the court which rendered the 
 original judgment, excludes the idea the proceeding can be com- 
 menced in any other county. Any other construction would defeat 
 the intention of the legislature in the passage of the act. Mani- 
 festly, it was the intention to give a remedy in exactly such cases as 
 this, to facilitate the collection of debts. 
 
 The second error, however, is well assigned. The filing of 
 the plea to the jurisdiction was not a full appearance on the part of 
 the company. Hence it was error to render final judgment on sus- 
 taining the demurrer to the plea to the jurisdiction of the court. 
 The judgment should have been a conditional one, as upon default,, 
 and a scire facias should have been ordered returnable to the next 
 term of the court, to show cause why the judgment should not be 
 made absolute. R. S. 1845, § ^6, p. 67. 
 
 For the error indicated, the judgment must be reversed and- 
 
 the cause remanded. 
 
 Judgment reversed. 
 This case arose under statutes providing as follows: "Any process 
 which, may be Issued by any clerk of either of said courts (circuit and 
 superior), or any judge thereof, in pursuance of law, shall be executed 
 
 * * * in any county or place in this state * * *" [R. S. 1845, p. J.49, 
 §48: R. S. 1877, p. 327 Ch. 37, § 29.] 
 
 "It shall not be lawful for any plaintiff to sue any defendant out of 
 the county where the latter resides or may be found, except in local 
 actions, and except * * * where there is more than one defendant. * 
 
 • *." [R. S. 1845, p. 413, § 2; R. S. 1877, p. 734, Ch. 110, §2.] 
 
 The decisions on this question are not entirely harmonious, and it. 
 
156, THE EXECUTION OF THE PROCESSES. 
 
 "Win be seen how greatly they are affected by the statutes; but the rule 
 stated' above applies in most cases. Rood Garnish-, § 23T. If both 
 paiTties are; non-resMmits of the state; Vhei garnishment should he where' 
 the garnishee resides. Stem, v., PrAzer, Circuit. J.,, 1(15, Mich.,, &85,. 6a N. 
 W. 968. 
 
 2: WHEN THE PROCESSES IVTAY BE EXECUTED. 
 A. Haw Early. 
 
 or. BEFORE' THE OFFTCER RECEIVES THE WRIT. 
 "ThiB' is a plaiir case. Without a wrlB of attachment, thB' sheriff at 
 Story county had no authority or right to notify the appellant' that ha- 
 Tvas attached as garnishee, nor to take his answers to the interroga- 
 forles. * * * The district court has no more power to render a judg- 
 ment upon a notice given and- answers thus taken' and returned' than 
 if the same thing had beendbne by a justice>of thei peace,, notary gub- 
 lie, a road supervisor, or a private individual." Judgment agiainst the. 
 garnishee reversed. Van Fossen v. Anderson, 8 Iowa 251. 
 
 d: AFTER THE" OFFICER RECEIVES'- THE" WRIT. 
 "The sheriiffi may levy the execution- the moment it reaches^ his, 
 handSi and cannot be compelled,, at the instance; of the debtor, to delay-' 
 action until the return day expices, or to give any other indulgence." 
 <Joode's Adm'r v. Miller, 78 Ky. 235, 237. 
 
 Bi How Late. 
 
 O; WITHOUT EIABILITV BY' THE-: OFFICER TO' THE' CREDITOR! 
 See Albrecht v. Long, post,, p. 257', and' Commonwealth v. Mageej 
 post, p. 167; Ledyard v. Jones, post, p. 264, and notes to same. 
 
 b. HOW LATE THE LEVY AND SERVICE MAY BE HADE AND" 
 BE VALID. 
 
 A valid levy may be made on the return day of the writ (Evans v. 
 Barnes, post, p. 302; Galines v. Clark, 1 Bibb,,Ky., 608; Blaisdell v. Sheafe, 
 5 N. H. 201; Drake on Attachm. § 187b); but levies made afterwards 
 are void though some property was levied before the return day. See 
 Schuylkill County's Appeal, post, p. 247, and notes to same. 
 
 The attachment and garnishment statutes often require these writs 
 to be served a certain number of days before the return day. In such' 
 ■case a judgment rendered on service made less than that many days 
 before the return day will be set aside on motion of a subsequent at- 
 taching creditor. Southern Bank v. McDonald, 46 Mo. 31, See albo; 
 Rtood Garnish. § 268; 
 
 c: HOW LATE THE PROCEEDINGS' AFTER LE'VY AND' SERVICE 
 MAY BE MADE AND BE VALID. 
 
 As to these questions see Evans v. Barnes, post, p. 302'; Smith v. 
 'Osgood, post, p. 295; Colyer v. Higgins, post, p. 267. 
 
WHO MAY EXECUTE. 167 
 
 3. BY WHOWI THE PROCESSES MAY BE EXECUTED. 
 
 A. An Officer Without the Writ. 
 
 On this Questicm see Van Fossen ,v. Anderson, 8 Iowa 251, guoted 
 ante under, Wien the Processes May Be Executed— How Early. 
 
 B. A Person Not an Officer. 
 
 No rights can be acquired hy yirtue of anything done under reme- 
 dial process by anyone not an ofiScer unless as an assistant acting with 
 the officer having the writ. The possession of the writ will he no pro- 
 tection to the non-commissioned individual from liability for acts done 
 under it. 
 
 A person assuming to act as a constable received an execution is- 
 sued by a justice of the peace and under it seized and sold barley be- 
 longing to the judgment debtor. Then the judgment debtor sued the 
 judgment creditors, the purchaser of the barley, and the man who exe- 
 cuted the writ, for trespass de bonis asportatls. The judgment credi- 
 tors were held not liable because it was not shown that they had any- 
 thing to do with the issuance or execution of the writ or received the 
 proceeds of the sale. As to the other defendants it was urged that the 
 statute directing how a justice of the peace may appoint a special con- 
 stable is not exclusive, that such power of appointment existed at com- 
 mon law, and that issuing and delivering the writ to the defendant to 
 be executed was a sufficient commission to protect him in executing it 
 and confer title on the purchaser at the sale made by him. But the 
 court held otherwise, saying: "We cannot agree to this proposition. 
 The authorities cited fail to sustain it. I do not think that there exists 
 at common law a.ny authority in a justice of the peace to appoint a con- 
 stable to serve civil process. That such authority existed to appoint 
 special constables to serve criminal process in certain cases is admit- 
 ted. In this case there is no evidence of the appointment of Keith as 
 constable to serve the execution either verbal or in writing; indeed, it 
 would seem very clear from the testimony of Vandervoort, the justice 
 who issued the execution, that he understood Keith to be a constable, 
 and i;hat no appointment was desired or necessary. * * * This statute 
 Is, in my opinion, exclusive of any other mode of appointing special 
 constables to serve civil process. Its provisions not having been fol- 
 lowed, it is no protection to either Keith or Kocbler — to the one in 
 seizing and selling the barley in question or to the other in .baying it 
 at the sale." The judgment against -.all the defendants was reversed 
 as to the judgment .creditors and affirmed as to Keith and Kochler. 
 McMillan v. Howe, 15 Neb. 520. Compare Burton v. "Wilkinson, poSt, 
 p. 164. 
 
 C. A Person Assistinjg an Officer Present Having the Writ. 
 
 In a trial between plaintiff relying on a purchase under a fl. fa. in 
 his tavor, and a claimant of the property, plaintiff offered in eviiience 
 the fi. fa. with the endorsement thereon. The evidence was objected 
 
158 THE EXECUTION OF THE PROCESSES. 
 
 to "because said entry on said fi. fa. was made by another [than the 
 officer] and he could not delegate his authority to a private person." 
 The court said: "It appears from the evidence in this case that the 
 entry on the fl. fa. was written out by Greer in the presence of, and by 
 the direction of Hawkins, the levying officer, who was unable to write, 
 and that the officer signed said entry with his mark after the entry was 
 made by Greer. A levy is required to be entered on the process by 
 virtue of which the levy is made, but we do not regard it as necessary 
 that it should be in the handwriting of the officer." Cox v. Montford, 
 66 Ga. 62. 
 
 D. An Officer Beyond the Limits of His County or Precinct. 
 
 Unless given by statute, the sheriff has no more power to serve 
 process beyond his county than a person without office. When a sher- 
 iff levied on and sold a railway running through his county into another 
 and a bill was filed by the purchaser seeking to redeem from a mort- 
 gage on the property, the court held that the complainant had no title 
 Tjecause the property was sold entire and the sheriff had no authority 
 beyond the borders of his county. Benson v. Smith, 42 Me. 414, 66 Am. 
 Dec. 285. Compare Oldfield v. Bulert, 148 111. 614, 39 Am. St. 231. 
 
 B. A Party to the Action or Person Interested. 
 
 SINGLETARY v. CARTER. 
 I Bailey Law (South Carolina) 467, 21 Am. Dec. 480. (1830) 
 
 Sheriff's Deed, Validity on Collateral Attack — Service of Process b> 
 Party, in Interest or Nominal — Service by Deputy of Party. 
 
 Trespass to try title to land sold as defendant's property by 
 the sheriff under a £. fa. on a judgment in favor of the present 
 plaintiff and others, and purchased by the plaintiff. The judg- 
 ment and execution were produced, and the levy, sale and execu- 
 tion of the sheriff's deed to the plaintiff proved. The levy was 
 made by one of the plaintiffs in the execution, and was objected to 
 as irregular and void on that ground, but the trial court overruled 
 the objection, and the jury found for the plaintiff. The defendant 
 now moved to set aside the verdict as contrary to law. Motion 
 granted. 
 
 The Court by Colcock, J. Without going into a con- 
 sideration of all the grounds taken in the brief, we are of opinion 
 that the motion must be granted on the first, via ; that the deputy, 
 who made the levy, was one of the plaintiffs in the execution. The 
 law wisely foreseeing that the ministers of justice should be freed, 
 as far as practicable, from all the improper bias which may result 
 
WHO MAY EXECUTE. 159 
 
 from self-interest, has declared, that no man shall be his own offi- 
 cer, and that no one shall in his own person, and by his own hand, 
 do himself right by legal process. Therefore, when the officer is 
 interested, it declares, that another shall act ; and this, in principle, 
 applies to all, though to some with greater, to others with less 
 force. 
 
 A distinction has been attempted, as to the nature of the pro- 
 cess, and the degree of interest ; but I am inclined to support the 
 broad ground, as the safest, and to say, that no officer, who [468] 
 is interested in a suit, shall serve any process appertaining to it, 
 from the commencement to the conclusion. * * * 
 
 I am aware that it is said in some of the old cases, five or 
 six, hundred years ago, that it was doubted,whether a sheriff could 
 serve a writ in which he was interested ; but these doubts, I think, 
 must always have been unfounded. The common law has been 
 eulogized as a system of reason and justice, adapted to the exigen- 
 cies of society. Now I ask, whether a proposition can be stated, 
 which would be more universally concurred in, than that no officer 
 should be permitted to act in his own case. I know of none, which 
 I think should be more general in its application, I would say, 
 from a constable to the President of the United States. At this 
 very sitting we set aside a renunciation of dower, because the jus- 
 tice of the quorum, by whom it was taken, was interested in the 
 transaction, although for his children merely, and not for himself. 
 And in the case of May v. Walters, 2 M'C. (S. Car.) 470, it was 
 held that the service of a writ by the deputy of the plaintiff, who 
 was sheriff, was void; in which all the judges concurred, except 
 Mr. Justice Gantt,who dissented on the ground that the sheriff was 
 only the nominal {469] plaintiff. This doctrine is, however, sup- 
 ported by some of the old authorities, as in Done v. Smethier, 
 Cro. Car. 416 ; Wimbish v. Willonghby, i Plowd. 73. There can 
 be no distinction made between a deputy and the sheriff in such 
 cases ; they are equally embraced in all the reasons of the law, and 
 are in fact identified. In Gage v. Graff am, 11 Mass., 181, it was 
 laid down, that process served by a deputy sheriff, where another 
 deputy of the same sheriff is a party, will be set aside on motion. 
 The motion is granted and a new trial ordered, because as the levy 
 
leO THE EXECUTION OF UBE MSOCESSES. 
 
 ■was illegal, the sale was consequently void, and the plaintiff's title 
 
 wa« not proven. 
 
 M.otian granted. 
 
 F. An Officer to Whom the Writ is not Directed. 
 
 BYBEE V. ASHBY. 
 7 Illinois (2 Gilm.) 151, 43 Am. Dec. 47. (1845) 
 
 Sheriff's Deed, Validity on Collateral Attack — Proof Essential to Sus- 
 tain — Order of Proof — Power to Cure by Amendment — What 
 Process Will Protect Officer — Impoiitance of Address. 
 
 Ejectment by Thomas Bybee against James Ashby, to recover 
 land in Fulton county. On a plea of not guilty verdict and judg- 
 ment were given in favor of deif endant and plaintiff brings error. 
 Affirmed. 
 
 Plaintiff claimed under a deed executed to him as purchaser 
 'by the sheriff of Fulton county at a sale by said sheriff on alias ii. 
 fa. in his hands directed to the sheriff of Kno.r county, issued on a 
 judgment rendered by the circuit court of said Knox county in 
 favor of said Bybee against said Ashby, in 1838. To show his 
 title, plaintiff proved purchase by defendant from Dhe U. S. gov- 
 ernment before said levy and sale, and offered to prove said judg- 
 ment, execution and return thereon by a 'transcript of the record in 
 that case, and offered said sheriff's deed; all of^ which 
 the court below excluded, and plaintiff claims the court 
 erred in refusing to receive them. F-rom the record offered it ap- 
 pears that the alias ft., fa. under which the sale was made was 
 issued Feb. 13, 1840, levied by said sheriff on said land April 14, 
 r840, and the land -sold to the plaintiff May 6, 1840, for $69, the 
 execution returned and 'filed -with the clerk of Knox county circuit 
 court May 28, 1841, and that on an ^^^^owie motion by Bybee with- 
 out notice to Ashby said execution was amended by said court at 
 ■its June term, 1843, 'by striking out the word "Knox" and insert- 
 ing the word "Fulton," so that the writ was addressed to the 
 sheriff of 'Fulton county. 
 
 The Court 'by Yowne; J. «= * * We think -this 'whole case 
 turns upon the question, w%-efcer the execution lunder whioh "the 
 -sheriff of Fulton county 'leviefl tipon, and sold and conveyed (the 
 ^and to Bybee, conferred upon "him such authority, under the cir- 
 
WHO MAY EXECUTE. 161 
 
 cumstances, as would make it a valid transaction, and sufficient in 
 law to divest Ashby of the title which he had previously acquired 
 by purchase from the United States. * * * [163] 
 
 In order to have made the deed to Bybee admissible as evi- 
 dence, and available for the purpose of a recovery in the court 
 below, two things were necessary to have been first shown by the 
 plaintiff : fi,rst, a judgment in favor of the plaintiff, and, secondly, 
 an execution to the sheriff. of Fulton county, where the land was 
 situated, authorizing him to levy upon and sell the property of the 
 defendant. 
 
 The general doctrine in regard to the sale of lands by a sheriff 
 is, that his deed is inadmissible in evidence unless the judgment 
 and execution, under which sale is made, be produced to show the 
 sheriff's authority to sell. The purchaser is bound to inquire 
 into the power and means by which the property is subjected to the 
 sale, and will acquire no right to the land, where the sheriff sells 
 without legal [164] authority. Voorheesv. U. S. Bank, ^^ilJ. S. 
 (10 Peters), 449, 458; Wilson v. M'Veagh, 2 Yates (Pa.), 86; 
 Wilson V. Conine, 2 Johns. (N. Y.), 280; Hinman v. Pope, 6 111. 
 (i Oilman), 131. * * * 
 
 The record in this case sufficiently proves the existence of the 
 judgment, but does not exhibit such an execution as would author- 
 ize the sheriff of Fulton county to sell the land of the defendant to 
 Bybee. The alias fi. fa., under which the land was levied 
 upon and sold, was directed to the sheriff of Knox county, and 
 delivered to, and executed by the sheriff of Fulton county, before 
 any amendment of the writ was permitted by. the court. The exe- 
 cution was not amended until the June term of the Knox circuit 
 court, 1843, and then, by an ex parte proceeding, without notice to. 
 the defendant, several years after the land had been sold by the 
 sheriff, and the deed of conveyance made to the plaintiff. We 
 think the court erred in permitting this amendment. 
 
 The leading case relied upon by the plaintiff's attorney on 
 [165] this point is, Walden v. Davison, 15 Wend. (N. Y.) 575. In; 
 that case, the execution was directed to the sheriff of Cattaraugus 
 county, but sent to the sheriff of Allegany county. The, sheriff's, 
 deputy in the last mentioned county received the writ, acted upon; 
 
162 THE EXECUTION OF THE PROCESSES. 
 
 it, received the money due from the defendant, and 
 returned it satisfied, but afterwards neglected to pay over 
 the money to the judgment creditor in the execution. Subse- 
 quently, in an action of assumpsit against the sheriif for money 
 had and received to the plaintiff's use, the sheriff pleaded the insuf- 
 ficiency of the execution to render him liable for the act of his 
 deputy in collecting and withholding the money. Bronson, J., 
 who delivered the opinion of the court, said, "that as the writ was 
 intended for and delivered to the sheriff of Allegany county, and 
 he has executed the same without any objection on the part of the 
 judgment debtor, he cannot be allowed to withhold the money 
 from the judgment creditor. The sheriff might have declined to 
 execute it on the ground of the irregularity ; but as he has elected 
 to treat it as a valid process, and has acted upon it under color of 
 his office, it is too late now to make such an objection;" and this 
 was all that was necessary to be decided in that case. In this opin- 
 ion we most readily concur. But we totally dissent form the 
 dictum of the judge, arguendo, when he also says, "that the mis- 
 take in the direction of the execution did not render it absolutely 
 void, and that the court would, at any time, have ordered an 
 amendment, if that had Joeen necessary for the protection of the 
 officer." -We do not decide that the execution in this case was 
 void, but that being directed to the sheriff of Knox county where 
 the judgment was, it conferred no authority on the sheriff of Ful- 
 ton county to sell the land of the defendant. 
 
 The proper distinction to be taken, as a general rule, between 
 an execution that will protect the sheriff in the proper discharge of 
 his duties under it, and one that will not, we hold to be this : that 
 when the writ is regular upon its face, although there may in fact 
 l)e a variance between the execution and judgment as to. the true 
 .amount recovered hy [i66] the latter, the sheriff will nevertheless 
 tie protected, and as it is his duty to execute it, when delivered to 
 him, notwithstanding such repugnancy, for be is not bound to in- 
 quire whether there is a judgment exactly corresponding with it or 
 not ; and such a variance will not affect the validity of a sale made 
 under it, if, in other respects, it be made in conformity with law. 
 
 In saeh a case, tihe execaition is voidable only and may be 
 
WHO MAY EXECUTE. 1€3 
 
 amended as well after as before the sale. Bissell v. Kip, 5 Johns. 
 89, 100: Laroche v. Wasbrough, 2 Term (Eng.) 737: Jackson v. 
 Walker, 4 Wend. (N. Y.), 462; Parmelee v. Hitchcock, 12 do. 
 
 96, 97- 
 
 But where the execution is not regular upon its face, as for 
 instance, where it is issued without the proper seal of court at- 
 tached, or where, as in this case, it is directed to th* sherifif of one 
 county and is delivered to the sheriff of another 
 county, to be executed, such process will not justify the officer in 
 executing it, and all his acts under it will be absolutely void, and 
 he a trespasser, and the purchaser will acquire no right to the 
 property purchased at the sale. 
 
 The courts all proceed upon the ground that the process must 
 be regular upon its face to justify the officer ; in which case he is 
 bound to execute it, and his acts will be valid, even though the pro- 
 cess should afterwards be set aside for irregularity. Bjit tliey at 
 the same time declare, that although innocent purchasers will be 
 protected, where the process is voidable only, that the same reasons 
 of policy do not exist where a judgment credftor, as in the case of 
 Bybee, becomes the purchaser. It is his execution, it is to be 
 executed for his benefit, and it would be the height of injustice to 
 allow the party guilty of the irregularity, to take advantage of it. 
 As between the original parties, "there can be no objiectjon to an 
 inquiry into the regularity or irregularity of the sale. Jackson v. 
 Caldwell, i Co wen, 622, 644-645. 
 
 In this case, the execution so far as the sherifif of Fulton 
 county was concerned, was irregular upon its face; i± was not 
 directed to him, nor was he commanded to execute its mandate, 
 and consequently conferred no authority upon him to sell the land 
 of A'shfey. [i(57] 
 
 Bybee, therefore, acquired no title by his purchase, as we ccjn- 
 sider all the proceedings of the sheriff absolutely void. The 
 circuit court erred in permitting the execution to be amended m 
 affirmance of the proceedings of the sheriff, but the amendment 
 will not cure the original defect in the process; and espffiialljr as 
 the plaintiff, Bybee, was the judgment creditor in the executjoo, 
 
164 THE EXECUTION OF THE PROCESSES. 
 
 and will therefore be considered as having purchased the land with 
 
 full notice of the irregularity. 
 
 Judgment oKrmed with costs. 
 
 This case is supported by the weight of authority as to who may 
 execute process. See also Porter v. Stapp, 6 Colo. 32; Johnson v. El- 
 kins, 90 Ky. 163. 
 
 Cooley, J. "The case of the officer is next to be considered. It is 
 claimed, first, that he is liable [in trespass by the judgment debtor for 
 the wrongful levy after defendant had appealed from the judgment 
 on which the execution was issued] because the process was not ad- 
 dressed to him, and therefore he had no authority to serve it. But the 
 statute expressly empowers sheriffs to serve the process which con- 
 stables may execute (Comp. Laws, 1871, § 568) ; and it does not require 
 that there should be any special direction for the purpose. * * * No 
 error was therefore committed in holding the officer not liable." Pos- 
 ter V. Wiley, 27 Mich. 244, 15 Am. Rep. 185. 
 
 4. THE LEVY. 
 
 A. On Land. 
 
 a. SUFFICIENCY OF THE INDORSEMENT OR DESCRIPTION TO 
 IDENTIFY THE PROPERTY. 
 
 As to this point see Hughes v. Streeter, post, p. 338. 
 
 b. THE RECORDING OF THE LEVY. 
 
 As to this point see M'Gregor v. Brown, post, p. 291. 
 
 B. On Personalty. 
 
 a. RIGHT OF THE OFFICER LEVYING TO BREAK DOORS, ETC. 
 
 BURTON V. WILKINSON. 
 i8 Vermont i86, 46 Am. Dec. 145. (1846) 
 
 Service of Process by Special Deputy — At Night — Proof of Authority — 
 Demanding Admittance, of Whom — Right to Break Into Dwell- 
 ing or Barn — For Stranger's Concealed Goods. 
 
 Trespass quare clausum f regit by Albert S. and, Oscar A. 
 Burton against Curtis Wilkinson and L. H. Nutting, alleging that 
 defendants, on Oct. 17th, 1842, broke open plaintiff's warehouse 
 and took butter belonging to the plaintiffs. Defendants pleaded 
 in justification, that Wilkinson, as a specially authorized officer, 
 and Nutting, his servant, took the butter on an attachment against 
 one Cutter, having demanded the keys before breaking the door 
 open. Then plaintiffs replied that the butter belonged, not to Cut- 
 
THE LEVY. 165 
 
 ter, but to one Houghton, for whom plaintiffs held. Defendants 
 rejoined that Houghton had sued them for the taking and judg- 
 ment had been rendered against him. To this plaintiffs demurred. 
 The court overruled the demurrer and plaintiffs excepted. Af- 
 firmed. 
 
 H. R. & J. T. Beardsley, for plaintiffs. 
 
 Smalley, Adams & Hoyt and Nutting & Hunt, for defend- 
 ants. 
 
 The Court by Williams, C. J: But two questions 
 have presented themselves to the consideration of the court in this 
 case. I. As to the power of a person, specially deputized to serve 
 a writ, in relation to the breaking of doors. 2. As to the claim set 
 up by the plaintiffs under the title of Houghton. 
 
 A person deputed to serve a writ, as was the defendant Wil- 
 kinson, has all the powers, which may be exercised by a sheriff in 
 serving or executing any process, except that he is not to be recog- 
 nized or obeyed as a sheriff) or known officer, but must show his 
 authority, and make known his business, if required by the party 
 who is to obey the same. In this particular he represents a special 
 bailiff, rather than a known officer. To make an attachment, or to 
 levy an execution on goods, the sheriff cannot break open the outer 
 door of the debtor's dwelling house. It is otherwise, if the goods 
 of a stranger are secreted in the dwelling house. A barn, or out- 
 house, adjoining to and parcel of the house, or within the curtil- 
 age, may be broken open to make such levy; but a request must 
 first be made for admittance. A barn in the field may be opened 
 without request. Penton v. Brown, i Keble, 698; Haggerty v. 
 Wilber, 16 Johns. 287. There is nothing to prevent a sheriff from 
 serving an execution in the night, as well as in the day time. Wil- 
 kinson [190] was therefore justified in breaking into the ware- 
 house in question, to serve an attachment on the goods of any per- 
 son therein; — but he mast first demand admittance. 
 
 In this case it is stated, that he did demand admittance of the 
 persons who had the key ; but it is objected, that the plea does not 
 state but that the persons, who had the key, were wrongfully in 
 possession. We think this was not necessary. If he demanded 
 admittance of those who had the custody and care of the key, and 
 
166 THE EXECUTION OF THE PROCESSES. 
 
 who could have let him in without compelling him to resort to 
 force, it was all that was necessary ; and he was not bound to in- 
 quire how, or in what way, they became possessed of the same. A 
 demand of the plaintiffs for admittance could have been of no use, 
 as they could not have unlocked the door, while Bogue and 
 Walker had the key. If there had been any collusion between the 
 defendants and Bogue and Walker, which would have made the 
 defendants liable, it should have appeared in the replication. A 
 sheriff would have been justified in breaking open the warehouse 
 of the plaintiffs to do execution on the goods of Cutter, having 
 first demanded admittance of the person who had the key. * * * 
 The judgment of the county court is therefore affirmed. 
 
 The law as to forcing doors is accurately stated here. See Free- 
 man on Ex § 256. Tlie leading case is Seymayne's Case, 5 Coke 91. 
 
 b. WHAT CONSTITUTES A VALID LEVY OR SEIZURE. 
 
 As to this point see Green v. Burke, post, p. 318 ; Schuylkill County's 
 Appeal, post, p. 247. 
 
 C. DISTINCTION BETWEEN THE LEVY AND THE INDORSE- 
 MENT. 
 
 As to this point see Field v. Macullar, post, p. 252 ; Pracht v. Pister, 
 ante, p. 62. 
 
 d. NECESSITY OF SEIZURE AFTER RECEIVING THE WRIT. 
 
 As to this point see Pracht v. Pister, ante, p. 62, and Field v. Ma- 
 cullar, post, p. 252. 
 
 e. NECESSITY OF REMOVING THE GOODS. 
 
 As to this point see Acton v. Knowles, post, p. 298; Green v. Burke, 
 post, p. 318; Schuylkill County's Appeal, post, p. 247; Conn. v. Caldwell, 
 post, p. 185. As to growing crops see Pracht v. Pister, ante, p. 62. 
 
 f. NECESSITY OF INDORSING THE LEVY ON THE WRIT. 
 
 As to this point see Field v. Macullar, post, p. 252; Pracht v. Pister, 
 aate, p. 62. 
 
 g. EFFECT OF ILLEGAL ACT IN OBTAINING THE LEVY. 
 
 As to this point see Holker v. Hennessey, post, p. 212. 
 
court's power of control over its processes. 167 
 
 5. POWER OF THE COURT OVER ITS PROCESSES. 
 
 COMMONWEALTH v. MAGEE. 
 8 Pennsylvania St. 240. (1848) 
 
 Power of Courts Over Their Processes — Jurisdiction of Judge at Cham- 
 bers — Proper Practice Concerning IVIotlons and Interlocutory 
 Orders — Duty of Officer to Notify Creditor of Proceed- 
 ings in the Case — Duty to Obey Orders of the 
 Court — Diligence Required in Execu- 
 tion and Return of Process. 
 
 Debt on official bond by the commonwealth for the use of L. 
 G. Brandebury and G. Klink against Alexander Magee, late sheriff 
 c : Perry county, and his sureties, to recover the amount of a fi. fa. 
 /j'iven him for collection. From judgment for defendants plaintiff 
 brings error. Affirmed. 
 
 The £. fa. in question was issued and given to the sheriff April 
 9, 1844, returnable at the August term. At the time the writ was 
 given the sheriff the defendant had plenty of property liable ; but 
 the sheriff had taken no action under the writ when the judge at 
 chambers made an order in the cause, "May 4th, 1844, in the above 
 case proceedings stayed until the 2nd day of the August Term 
 ensuing this date. John Judkin." Aug. 7th, 1844, H. fa. was 
 issued on a judgment of John Conrad against the comjnon debtor 
 and on this H. fa. all of the debtor's property was sold 
 
 Brandebury, for plaintiff, contended, (i) that the order was 
 coram non judice, and no protection to the sheriff, (2) at all events 
 the sheriff became liable by his failure to make return and by con- 
 cealing the order till he had sold the defendant's property on junior 
 executions. 
 
 Reed, contra. 
 
 The Court by Bell, J. It is true a sheriff must use due dili- 
 gence to levy and make the money demanded by an execution 
 placed in his hands. What will amount to due diligence must neces- 
 sarily vary with the circumstances of each case; but it may be 
 safely affirmed that when there are no peculiar reasons known to 
 the sheriff calling for the exertion of unusual energy, and no special 
 request by the plaintiflf or his agent for immediate action, a delay 
 such as occurred here before the delivery of the judge's order of 
 
168 THE EXECUTION OF THE PROCESSES. 
 
 the 4th of May, in the absence of collusion or fraud, will not be 
 deemed laches to fix the officer for loss of the debt. Indeed, no 
 fact is suggested on the record tending to show that the lapse of 
 time that intervened between the delivery of the writ and the 
 making of the order, endangered the plaintiff's demand. The 
 execution wtiich eventually swept the goods of the defendant, 
 Ernest, was not issued until long after, and its success was conse- 
 .quent, not on the delay of the sheriff, but incidentally upon the 
 legal effect of the judge's interference. 
 
 The inquiry is thus reduced to the single question, whether his 
 order to stay proceedings was obligatory on the sheriff, or a nul- 
 lity, commanding neither respect nor obedience. 
 
 The authority that a judge exercises at chambers in a cause 
 pending, is the authority of the court itself. Doe dem. Prescott v. 
 Roe, 9 Bing. (Eng.) 104, 2 Moore & S. 119, i Dowl. P. C. 274. 
 And it may be enforced by attachment issued by the court, for the 
 reason that disobedience of a judge's order is a contempt of the 
 court, and punishable as such. 
 
 It is said, that, upon any other principle than that of delegated 
 authority, it would be difficult to demonstrate the validity of many 
 of the acts done by judges in cases and under circumstances in 
 which the legislature has not specially invested them with power, 
 in their individual capacities. This species of jurisdiction is exer- 
 cised ex necessitate rei to prevent injustice and oppression, and to 
 facilitate and direct the interlocutory proceedings of suits at law. 
 It consequently embraces a variety of subjects more or less import- 
 ant to a proper administration of justice. Some of them are of 
 course ; and the administration of others calls for the exertion of 
 a sound judgment and discretion. It is properly, therefore, under 
 the control of the court from which the authority is derived, and 
 to which a dissatisfied party is at liberty to appeal. Among the 
 subjects which reasonably fall within the circle of this jurisdiction, 
 the power of staying an execution issued in vacation has been re- 
 peatedly recognized and acted on. Such an authority to be exer- 
 cised by a single judge, is [247] indeed necessary to prevent op- 
 pression, and to prohibit the undue sacrifice of property illegally 
 levied. For these purposes it should be liberally, though cau- 
 
court's power of control over its processes. 169 
 
 tiously, exercised. There can exist, therefore, no doubt that a 
 judge of the court of common pleas possesses authority to make 
 such an order as is complained of here, and, when properly made, 
 that it is obligatory on the officer to whom it is addressed. But 
 while this is conceded, it is insisted that the order under consider- 
 ation was coram non judice, and void for want of previous notice 
 to the plaintiffs in the execution. It is very true that the proper 
 mode of proceeding in most cases is by summons, in the nature of 
 a rule nisi, fixing a day for a hearing, and served on the opposite 
 party. Without this the judge ought not to interfere, unless, in- 
 deed, the order or direction sought is of course. When the order 
 is made, notice of it should be given to the party to be affected by 
 it; otherwise he is at liberty to disregard it. Bagly's Prac. 15 et 
 seq. But notice is not always' necessary, for in some cases an 
 order may be without summons. Nor is the omission of it fatal to 
 the validity of the proceeding, ab initio, in any case. Though it is 
 highly proper, and indeed indispensable, to correct practice, a 
 neglect to give it is but an irregularity which, upon application, 
 would furnish a sufficient ground to rescind the order made, but 
 would not justify the officer's refusal to obey it. The power of 
 acting residing in the judge, it is no part of the sheriff's business 
 to inquire whether it has been executed in an orderly manner, or to 
 determine how far the steps properly precedent to the order have 
 been taken. In this respect, the fiat at chambers is analagous to a 
 writ, which the sheriff is bound to execute, though it be irregular ; 
 the distinction being between process voidable for irregularity, and 
 process void by lack of jurisdiction of the subject. 
 
 Nor was it the duty of the sheriff to notify the plaintiff s in the 
 execution, of the receipt of the judge's order. He was justified in 
 presuming that all had been rightly acted ; and could not with pro- 
 priety, or for any purpose of legal effect, inquire further. Some 
 degree of diligence was due from the plaintiffs ; and an application 
 from them to the judge, would doubtless have procured a recis- 
 sion, or at least a modification of the order, by the annexation of a 
 condition preservative of their priority of lien. Clark v. Manns, 1 
 Dowl. P. C. (Eng.) 656; Bagly's Prac. 29. Either of these 
 courses was within the power of the judge. The first would prob- 
 
170 THE EXECUTION OF THE PROCESSES. 
 
 ably have been pursued, had he, on inquiry after summons, been 
 satisfied his order was irregular and improperly obtained. The 
 latter might have been effected by a direction to stay proceedings, 
 after levy [248] made, the levy to remain as security. But lack- 
 ing any motion of this sort, it certainly lies not in the mouths of the 
 plaintiffs to impeach the sheriff of misfeasance in the non-execu- 
 tion of the fieri facias. His hands, as we have seen, were tied. It 
 is not enough to aver the plaintiffs knew nothing of the order, and 
 could therefore take no steps for its abrogation or amendment. 
 The answer is, they might have known it, had they inquired of the 
 sheriff touching the non-execution of the writ, an inquiry as com- 
 monly made as it is natural. That they did not do this, is their 
 misfortune, if not their fault; the consequences of which are not 
 to be visited upon the officer, who is in no default. The truth is, 
 the inceptive error was committed by the judge ; first, in acting 
 upon an ex parte hearing, and next, in granting an unconditional 
 order, without respect to the rights of the plaintiffs. The results 
 of this mistake, in this particular case, ought to warn the associate 
 judges of the commonwealth, who are not expected to be learned 
 in matters of law, against a similar interference with process, 
 without an opportunity first given to the antagonist party to be 
 heard. The English mode of procedure in such cases is clearly 
 pointed out in Bagly's Practice, at Chambers, cap. i, and being 
 well calculated to protect the rights and interests of all parties, 
 should be followed, here, as closely as possible. 
 
 The inquiry recurs, what was the effect of the judge's order? 
 Certainly to hang up the execution until after the return day. Its 
 functions were thus suspended until, by the lapse of time^ its vi- 
 tality was extinguished. Beyond the return day, its operation and 
 vigor could only have been preserved by an actual levy ; or rather, 
 the effect of the levy being to place the goods in gremio legis, they 
 would have so remained for satisfaction of the plaintiffs' execu- 
 tion, unless released by their consent or misconduct, or by opera- 
 tion of law. But a levy under the first execution being wanting, 
 it had no hold on the goods after the return day. Consequently, 
 the second execution was the only effective one in the hands of the 
 sheriff at the time of the sale of the goods. The proceeds were 
 therefore properly applied in satisfaction of it. 
 
court's power of control over its processes. 171 
 
 The non-return of the first execution until after November 
 Term, is not such negligence as of itself makes the sheriff liable to 
 an action. Though it would be better, regularly, to make return of 
 all such writs, it seems to be settled he need not do so, unless spe- 
 cially ruled. Bingham on Executions, 251 ; Watson on Sheriffs, 83. 
 But were this otherwise, the neglect to return the writ is not as- 
 signed as a breach of the official bond, and, therefore, presents no 
 subject for inquiry here. Nor is there anything in the breach 
 [249] suggesting a false return. It has already been shown that 
 the authority exercised by a judge at chambers, is the authority of 
 the court. His order is, in legal contemplation, the order of the 
 court, and may, without impropriety, be so treated in a return of 
 the writ. The objection to the evidence is consequently unsound, 
 and the averment of a false return unsustained. 
 
 Judgment affirmed. 
 
 The court's power of control over its process as stated is recog- 
 nized everywhere (8 Bncy. PI. & Pr. 460), but the powers of a judge 
 at chambers is a more vexed question. Clearly without statute he has 
 no power in vacation to render judgments or to set them aside. Fisk 
 V. Thorp, 51 Neb. 1; 4 Ency. PI. & Pr. 347. But power of control over 
 process of the court stands on different ground, for often delay till the 
 next term of court would work irreparable injury. Therefore, though 
 the judge at chambers probably has no power to quash the execution 
 (Freeman v. Dawson, 110 U. S. 264), it seems clear that he may stay 
 it till the question can be heard in court. See Freeman on Ex., § 32. 
 See also Lockhart v. McElroy, 4 Ala. 572; Sanchez v. Carriaga, 31 Gal. 
 170. 
 
 This is a strong case in favor of the sheriff, as to the time within, 
 which he must levy. See Albrecht v. Long, post, p. 257, and notes; 
 also 22 Am. & Eng. Ency. L. 542. 
 
 Mr. Freeman takes exception to the ruling in the last paragraph 
 of the above opinion, saying: "This view is certainly not in accord 
 with the great majority of the American decisions on the subject." 
 Freeman on Ex., § 368. Numerous cases are cited which amply sustain 
 the criticism. See especially Burk v. Campbell, post, p. 263, and 
 M'Gregor v. Brown, post, p. 291. The English cases, in which the 
 judges disagreed on this point, are reviewed in Runlett v. Bell, 5 N. H. 
 433. 
 
X. WHAT MAY BE TAKEN UNDER THE PROCESSES. 
 
 Under Execution, 172. 
 
 A. The Body of the DeMor, 172. 
 
 B. The Real Estate of the Debtor, 172. 
 
 C. The Personal Estate of the Debtor, 183. 
 Undeb Attachment, 184. 
 
 A. Comparative Scope of This and Other Processes, 184. 
 
 B. Importance of Personal Service on the Debtor, 185. 
 Undeb Gabnishment, 187. 
 
 A. General Principles and Grounds of Liability, 187. 
 
 B. Charging the Garnishee for Property in Ms Possession, 191. 
 
 o. Property Capable of Levy Under Attaeliment or Execution, 191. 
 6. Necessary Title in Garnishee, 191. 
 
 c. Necessary Power of Control by Garnishee, 193. 
 
 d. Effect of Possession of Legal Title Without Actual Possession 
 of the Property, 197. 
 
 e. Mortgaged Property, for the Mortgagor's Interest, 200. 
 
 f. Fractional Interests of Tenants in Common, Partners, etc., 203. 
 
 g. Choses in Action and Indicia of Title, 208. 
 h. Property in Gremlo Legis, 212. 
 
 C. Charging the Garnishee as Debtor, 224. 
 
 a. Character of Demand, Absolute or Contingent, 224. 
 
 b. Character of Demand, Ex Contractu or Ex Delicto, 229. 
 0. Character of Demand, Liquidated or Unliquidated, 231. 
 
 d. Character of Demand, Payable in Cash or in Kind, 231. 
 
 e. Demands for the Payment of Which the Defendant Holds Se- 
 
 curity, 232. 
 
 f. Demands Evidenced by Commercial Paper, 234. 
 
 g. Demands Representing the Proceeds of Exempt Property, 237. 
 /i. Demands in Suit or Judgment, 240. 
 
 i. Effect of Orders, Checks, etc., as Assignments of the Demand, 
 
 241. 
 ;. Burden of Proof, etc., 243. 
 
 1. UNDER EXECUTION. 
 
 A. The Body of the Debtor. 
 
 See Sir William Harbert's case below and notes to same. 
 
 B. The Real Estate of the Debtor. 
 
 SIR WILLIAM HARBERT'S CASE. 
 3 Reports (Coke) lib. 
 
 Remedial Processes at Common Law — To Sovereign and Citizen — Stat- 
 ute Westm. 2d, c. 11, 18, & 45 — Statute de Mercatoribus — 
 Statute 25 Edw. 3 c. 17 — Origin and Extent of Impris- 
 onment for Debt — Liability of Land to Execution. 
 
 This decision was rendered in the English Court of Exchequer at 
 Mich, term, 27 & 28 Eliz. (A. D. 1585) 
 
UNDER EXECUTION. 173 
 
 This was a scire facias issued out of the Court of Exchequer in 
 the i8th year of Eliz., on a recognizance acknowledged to the king 
 in the court of augmentation in the 4th year of Edw. IV., by 
 Matthew Harbert. Said Harbert having died, the scire facias was 
 directed against the executors of his will and the heirs of his land, 
 and the sheriff made return that said Harbert had no executors 
 within his bailiwick and that he had summoned Sir William Har- 
 bert, the son and heir of said Matthew, etc. On the return day said 
 Sir William made default, upon which the Barons gave judgment 
 in favor of the Queen against him generally for said 3000/. And 
 thereupon said Sir William brought the case here on writ of error, 
 and assigned three errors : i on the scire facias; 2' on the return ; 
 and, 3 on the judgment. And this term the errors were moved by 
 Plowden, being of counsel with Sir William Harbert, before Sir 
 Thomas Bromley, Lord Chancellor of England, and the Baron of 
 Burleigh, Lord Treasurer of England, and the two chief justices, 
 Wray and Anderson, in the Exchequer Chamber. And in this 
 case divers points were resolved. 
 
 First, that at the common law, where a common person sues 
 a r xognizance or a judgment for debt or damages, he shall not 
 have the body of the defendant, nor his lands (unless in special 
 case) in execution. But at the common law he shall have execu- 
 tion in such case only of his goods and chattels, and of corn, and 
 the like present profit which shall grow upon the land, to which 
 purpose the common law gave him two several writs: [12] i. A 
 levari facias, by which writ the sheriff was commanded, quod de 
 terris & catallis ipsius A. &c. levari facias, &c. and another writ 
 called iieri facias; which was only de bonis & catallis, both which 
 writs ought to be sued within the year after the judgment, or the 
 recognizance acknowledged; and if he had not the one or the 
 other within the year, the plaintiff or the conusee was put to his 
 action of debt. And now by the statute of Westminster, 2 cap. 
 45, a scire facias is given ; and by the statute of Westminster, 2 
 cap. 18, cum debitum fuerit recuperatum, &c., the elegit is given 
 of the moiety of the land, which was the first act which stibjected 
 land to the execution of a judgment, or of a recognizance, which 
 is in the nature of a judgment, and therewith agreeth Fitzherbert's 
 
174 WHAT MAY BE TAKEN. 
 
 Natura Brevium 265, g. And by the statute of 13 Edw. i. de 
 mercatoribus, 27 Edw. 3 cap. 9, and 23 Hen. 8 cap. 6, it is pro- 
 vided, that in case of a statute merchant, or statute staple all the 
 lands which the conusor had at the day of the conusance shall be 
 extended in whose hands soever they after come, either by feoff- 
 ment or other manner. But in debt against the heir upon an obli- 
 gation made by his ancestor, the plaintiff by the common law 
 should have all the land which descended to him in execution 
 against him, and yet he should not have execution of any part of 
 the land against the father himself ; but the reason thereof was, be- 
 cause the common law gave an action of debt against the heir ; and 
 in such case, if he should not have execution of the land again&t 
 the heir, he could have no fruit of his action; for the goods and 
 chattels of the debtor do belong to his executors or administrators, 
 and so for necessity in such case, only land was liable to execu- 
 tion of the debt of a common person at the common law. Also 
 the body of the defendant was not liable to execution for debt at 
 the common law, vide 13 Hen. 4, i. But the common law, which 
 is the preserver of the common peace of the land, did abhor all 
 force as a capital enemy to it; and therefore, against those who 
 committed any force, the common law did subject their bodies to 
 imprisonment, which is the highest execution, by which he loses 
 his liberty till he agree with the party, and pay a fine to the king ; 
 and therefore it is a rule in law, that in all actions quare vi &■ 
 armis, capias ad respondendium lies, and where capias lies in 
 process, there, after judgment, capias ad satisfaciendum lies, and 
 there the king shall have capias pro fine. With that agreeth 8 Hen. 
 6, 9 ; 35 Hen. 6, 6 ; 22 Edw. 4, 22 ; 40 Edw. 3, 25 ; 49 Edw. 
 3, 2, and many other books. Then by the statutes of Marie- 
 bridge, cap. 23, and Westminster 2, cap. 11, capias was giv^n in 
 accompt, for at the common law process in accompt was distress 
 infinite; and afterwards by the statute of 25 Edw. 3, cap. 17, the 
 like process was given in debt as in accompt, for before that stat- 
 ute the body of the defendant was not liable to execution for 
 debt, for the reason and cause aforesaid ; but it was resolved, that 
 at the common law, the body, the land, and the goods of the ac- 
 comptant, or the king's debtor, were liable to the king's execution, 
 
UNDER EXECUTION. 175 
 
 for thesaurus regis est pads vinculum et bellorum nervi. And 
 therefore the law gave the king full remedy for it ; and therewith 
 agrees S Eliz. Dier 224, and Plowden's Comm. 321, Sir William 
 Cavendish's case, who was treasurer of the chamber, 24 Edw. 3 ; 
 Walter de Chirton's case, and infinite precedents in the Exchequer, 
 to prove, that ,for the king's debt, the body and the land of the 
 debtor shall be liable by the common law before the statute of 33 
 Hen. 8, cap. 39. * * * £j^j * * * 
 
 But these [omitted] points were not resolved by the court, but 
 afterwards, on a petition made to the queen. Sir William com- 
 pounded with her. Plowden and Coke were of counsel with Sir 
 William Harbert. 
 
 Statute of Westminster Second [13 Edward I, A. D. 1285], Chapter 
 18. — Cum debltum fuerlt recuperatum, vel in curia regis recognitun), 
 vel damna adjudicata sit de caBtero in electione illius qui sequitur pro 
 hnjusmodi debito, aut damnis, sequi breve quod vicecom' fieri faciat de 
 terris et oatalMs debitoris, quod viceeom' liberet el omnia catalla debit- 
 oris(exceptisbobusetafriscarucaB),et medietatem terrae suae quousque 
 debitum fuerit levatum per rationabile precium et eztentum. Et si 
 ejiciatiir de illo tenemento, habeat recuperare per breve novae disseiS' 
 inae, et postea per breve de redisseisina, si necesse fuerit. 
 
 Translation. — When debt is recovered, or acknowledged in the 
 king's court, or damages awarded, It shall be from henceforth in the 
 election of him that sueth for such debt or damages, to have a writ of 
 fieri facias unto the sheriff for to levy the debt of the lands and goods; 
 or that the sheriff shall deliver to him all the chattels of the debtor 
 (saving only his oxen and beasts of his plough) and the one-half of 
 his land, until the debt be levied upon a reasonable price or extent. 
 And if he be put out of that tenement, he shall recover by a writ of 
 novel disseisin, and after by a writ of redisseisin, if need be. 
 
 Growth of Imprisonment on Civil Process. "And here [With dis- 
 tress Infinite] by the common as well as the civil law the process ended 
 in case of injuries without forces the defendant If he had any sub- 
 stance, betng gradually stripped of it all by repeated distresses, till 
 he rendered obedience to the king's writ; and, tf he had no substance, 
 the law held him incapable of making satisfaction, and therefore looked 
 upon all farther process as nugatory. And besides, upon feodal prin- 
 ciples, the person of a feudatory was not liable to be attached for in- 
 jwries merely civil, lest thereby hip lord should be deprived of his per- 
 sonal services. But, in cases of injury accompanied with fOjrce, the 
 law, to punish the breach of the peace and prevent Its disturbance for 
 the future, provided also a process against the defendant's person in 
 case he neglected to appear upon the former process of attftehi»eBt, or 
 had no substance whereby to be attached; subjecting his body to im- 
 prisoani'Qut by the writ of cs^ias ad respondendum. But this im- 
 
176 WHAT MAY BE TAKEN. 
 
 munity of the defendant's person, in case of peaceable though fraudulent 
 injuries, producing great contempt of the law in indigent wrongdoers, 
 a capias was also allowed, to arrest the person, in actions of account, 
 though no breach of the peace be suggested, by the statutes of Marl- 
 bridge, 52 Hen. III. c. 23. and Westm. 2. 13 Edw. I. c. 11. in actions of 
 debt and detinue, by statute 25 Edw. III. c. 17 and in all actions ou 
 the case by statute 19 Hen. VII. c 9. Before which last statute 
 a practice had been introduced of commencing the suit by bringing an 
 original writ of trespass quare clausum fregit, for breaking the plain- 
 tiff's close vi et armis; which by the old common law subjected the 
 defendant's person to be arrested by writ of capias; and then after- 
 wards, by connivance of the court, the plaintiff might proceed to prose- 
 cute for any other less forcible injury. This practice (through custom 
 rather than necessity, and for saving some trouDle and expense, in 
 suing out a special original [282] adapted to the particular injury) still 
 continues in almost all cases, except in actions of debt; though now, by 
 virtue of the statutes above cited and others, a capias might be had 
 upon almost every species of complaint." 3 Blafikstone's Comment- 
 aries 281. 
 
 Abolition of Imprisonment for Debt. — Since Blackstone's time im- 
 prisonment for debt has been abolished in E3ngland except in a few 
 cases of debts fraudulently incurred. Statutes, 1 and 2 Vic. Ch. 110; 5 
 and 6 Vic, Ch. 116; 7 and 8 Vic, Ch. 96; 32 and 33 Vic, Ch. 62. 
 
 This blot upon American jurisprudence has been erased by statute 
 in most of the states; and now, though the statutes are not uniform, 
 capias generally lies only in actions and on judgments for torts, frauds 
 or misconduct in office. See review of the statutes in Freem. Ex. § 
 451; also article on Executions against the Body in 8 Encyc. P. & P. 
 pp. 584—649. 
 
 For extensive history of imprisonment for debt see articles in 5 
 Journal of Jurisprudence, pp. 239, 303. 
 
 JONES v. JONES. 
 I Bland's Ch. (Maryland) 443, 18 Am. Dec. 327. (1827) 
 
 Liability of Land to Execution — Statute 5 Geo. II — Judgment Lien — 
 
 Effect of Death of Judgment Debtor — Importance of Time of 
 
 Death — When Execution Lien Attaches, Common Law 
 
 and Statute 29 Car. II. — Effect of Levy on Title — 
 
 Property in Custodia Legis — Parties. 
 
 Creditors' bill by Hiram and Elizabeth Jones against the in- 
 fant heirs of Jesse Jones, deceased, and Spencer and Brown. The 
 bill alleged indebtedness of said Jesse to said Hiram on a single 
 bill and two judgments assigned to said Hiram by said Spencer, 
 and to said Elizabeth by bond, the death of said Jesse, and that his 
 personal estate had not been administered, and prayed that the land 
 of which said Jesse died seized might be sold and the proceeds 
 
UNDER EXECUTION. 177 
 
 thereof, together with $1,451.38 in the hands of said Brown (being 
 the surplus left in his hands as sheriiiE after satisfying a judgment 
 against said Jesse in favor of one Davison, from the proceeds of a 
 sale of land on fi. fa. issued and levied in the lifetime of said Jesse, 
 but not carried to sale till after his death) might be applied under 
 the direction of the court to the payment of the complainant's de- 
 mands and such other claims as might be due from said intestate. 
 The defendants answered severally admitting the allegations of 
 the bill. 
 
 Bland, Chancellor. This case standing ready for hear- 
 ing without opposition from the defendants, the solicitor of 
 the plaintiffs was fully heard, and the proceedings read and con- 
 sidered. 
 
 ' The peculiar nature of this case seems to require a more than 
 usually attentive consideration. Putting aside so much of it as re- 
 lates to the small parcel of land of which the intestate died seized, 
 about which there can be no difficulty ; this is the case of a creditor's . 
 bill, in which it appears, that the real estate of the debtor had been 
 taken in execution, during his lifetime, and sold after his death, \ 
 leaving a balance, which even yet remains in the hands of the ' 
 sheriff whose official term must have since expired, and who' has | 
 been brought here as a defendant, unassociated with any personal ' 
 representative of the intestate. These circumstances present a. 
 case in which it becomes necessary to determine the extent of the 
 power of the sheriff to follow out, after the death of the defend- 
 ant, [445] the authority conferred on him by the Heri facias he had 
 previously levied ; and if it should appear that his authority to pro- I 
 ceed with the execution was well founded, to ascertain whether the 
 surplus of the proceeds of the sale, so made, is to be considered asl 
 real assets to be taken from the hands of the heirs, or to be ac- \ 
 counted for as personal assets by an administrator of the intestate ; I 
 and also to inquire whether there is any mode in which the court, 
 by any exercise of power within its own legitimate sphere, can 
 compel an officer of another and a superior tribunal to place a fund, 
 now in his hands by their authority, under the direction of this 
 court to be disposed of as prayed by these plaintiffs. 
 
 It was a well settled principle of the common law of England 
 12 
 
178 WHAT MAY BE TAKEN. 
 
 that the real estate of a debtor could not be taken in execution at 
 the suit of a citizen creditor, and sold for the satisfaction of the 
 debt. This rule was considered as a fair and necessary result 
 from the nature of the feudal tenures, according to which all the 
 lands of that country were held. And, as the most liberal species 
 of those tenures were expressly declared to be that by which all the 
 lands of Maryland should be held, it followed that real estate Could 
 be no further subject to be taken in executioji here than the same 
 kind of estate was liable in England. Charter of Md. §§ 5 & i8 ; 
 Gilbert ^.. Ex. 89. 
 
 In the case of the king, however, an execution always issued 
 against the lands as well as the goods of a public debtor ; because 
 the debtor was considered as being not only bound in person, but 
 as a feudatory who held mediately or immediately from the king; 
 and therefore, holding what he had from the king, he was from 
 thence to satisfy what he owed to the king. Gilbert on Ex. 3. As 
 a consequence of this liability, and for the public benefit, if a judg- 
 ment was obtained against a public debtor by the king, he thereby 
 acquired a lien upon the real estate of such debtor, which took 
 efifect not merely from the date of the judgment, but by relation 
 from the commencement of the suit to the exclusion of all subse- 
 quent incumbrances. Pow. Mort. § 9 : Gilbert Ex. 93 ; Rorke v. 
 Dayrell, 4 Term 410; Sugden on Powers 184. In England the 
 king's debt is preferable in execution and in the administration 
 of a deceased's estate, to that of a citizen ; which right of prefer- 
 ence was in Maryland extended to the lord proprietary. Charter 
 of 1650 Ch. 28. After our revolution it was held to have devolved, 
 according to the principles of the common law, upon [446] the 
 State (State v. Rogers, 2 H. & Mc. (Md.) 198; HoUingsworth v. 
 Patton, 3 do. 125 ; Murray v. Ridley, do. 171) ; and it has been ex- 
 pressly declared, that all lands and tenements belonging to any 
 public debtor, after the commencement [44/] of suit against him, 
 shall be liable to execution in whatever hands or possession they 
 may be found. Acts of March 1778 Ch. 9, § 6; Nov. 1787, Ch. 
 40. By which legislative enactment the State's lien, as in England, 
 relates not merely to the date of the judgment, but to the com- 
 mencement of the action. Whence it follows, that the liability of 
 
UNDER EXECUTION. 179 
 
 the real estate of a debtor to the State to be taken in execution, and 
 the Hen of the State incident to such liability, are founded upon the 
 common law and the acts of assembly passed in express relation to 
 debts due to the State. 
 
 But the general rule of the common law in regard to the lia- ' 
 bility of real estate to be taken in execution as between party and 
 party, was modified by a statute passed in the year 1285,(0) which 
 made such estates liable to be partially taken in execution. This 
 statute, which gave the writ of elegit, enlarged the remedy of the 
 creditor by declaring that, when a debt was recovered or damages 
 adjudged, it should be in the election of the plaintiff to have a iieri 
 facias, or to have all the debtor's chattels and the one half of his 
 lands delivered to him until the debt was levied to a reasonable ex- 
 tent (2 Coke's Institutes 394) ; which gave the election immediately 
 that the debt was recovered; and therefore the whole land was 
 held to be bound from the day of the rendition of the judgment; 
 and those concerned, it was presumed, might easily ascertain from 
 the record by what judgments the lands of the debtor were thus 
 bound. Gilbert on Ex. 37. But as some inconvenience arose, be- 
 cause, according to the common law, judgments took effect by 
 relation from the first day of the term, it was in the year 1676 de- 
 clared by the statute of frauds (29 Charles II. Ch. 3, §§ 14, 15)1 , 
 that the day on which judgments were rendered should be entered i' 
 upon the record ; and that purchasers should be charged from such 
 time only, and not from the first day of the term whereof the judg- 1 
 ment was entered. This then was the nature and extent of the ju- 
 dicial lien, as between party and party, with which the real estate 
 of a debtor might become bound in Maryland as well as in Eng- 
 land. And this judicial lien was afterwards mainly fortified and 
 enlarged by a statute passed in the year 1732 (&) applicable only 
 
 (a) This Stat, given ante, p. 175; for Stat. 29 Car. II., see post, 293. 
 
 (b) Statute 5 Geo. II., Cap. 7, § 4, [A. D. 1732.]— Wliereas liis Majes- 
 ty's subjects trading to the British plantations In America lie under 
 great difficulties, for want of more easy methods of proving, recovering 
 and levying of debts due to them, than are now used in some of the said 
 plantations : and whereas it will tend very much to the retrieving of the 
 credit formerly given by the trading subjects of Great Britain to the 
 natives and Inhabitants of the said plantations, and to the advancing of 
 
180 WHAT MAY BE TAKEN. 
 
 to [448] the then colonies of Great Britain, and received as law in 
 Maryland, which subjected the whole of a debtor's real estate to be 
 taken in execution and sold for the payment of his debts. 
 
 Whence it appears, that the lien arising from the judgments 
 of Dawson and Spencer, at their respective dates, fastened upon 
 the estate of Jesse Jones, adhered to it after his death, and would 
 have followed it into whosesoever hands it might have passed until 
 they were satisfied, or the right to sue out an execution upon them 
 had become entirely barred. But a judicial lien of this kind may 
 exist after the case has abated by the death of a party ; and yet no 
 execution could be immediately issued against the lands upon 
 which it attached, after the death of the party, until the judgment 
 had been regularly revived. And this was in fact the situation of 
 Spencer's judgments. Hence although it will be necessary, in the 
 further consideration of this case, to recollect the nature and extent 
 of the judicial lien with which the real estate of Jesse Jones had 
 been encumbered during his lifetime; yet the authority of the 
 sheriff to make the sale he did, after the death of Jones, under the 
 iieri facias, issued on Dawson's judgment, must be deduced from 
 other principles of law 
 
 By the common law a fieri facias bound the goods of the de- 
 fendant from its teste, so that any sale made by him, after that time, 
 
 the trade of this kingdom thither, if such inconveniences were reme- 
 died; may it therefore please your Majesty * * * 
 
 IV. And he it further enacted by the authority aforesaid, That from 
 and after the said twenty-ninth day of September, one thousand seven 
 hundred and thirty-two, the houses, lands, negroes, and other heredita- 
 ments and real estates, situate or being within any of the said planta-, 
 tions belonging to any person indebted, shall be liable to and charge- 
 able with all just debts, duties and demands of what nature or kind 
 soever, owing by any such person to his Majesty, -or any of his subjects, 
 and shall and may be assets for the satisfaction thereof, in like manner 
 as real estates are by the law of England liable to the satisfaction of 
 debts due by bond or other specialty, and shall be subject to the like 
 remedies, proceedings and process in any court of law or equity, in any 
 of the said plantations respectively, for seizing, extending, selling or 
 disposing of any such houses, lands, negroes, and other hereditaments 
 and real estates, toward the satisfaction of such debts, duties and 
 demands, and in like manner as personal estates in any of the said 
 plantations respectively are seized, extended, sold or disposed of, for 
 the satisfaction of debts. 
 
UNDER EXECUTION. 181 
 
 was void ; because it was thought, that, if it were not so, every 
 execution might be avoided by a sale; and it was presumed that 
 the sheriff would execute such writs immediately; and that there 
 would be thereby such notice in the neighborhood as to prevent 
 any deception or fraud. But this notion of a retrospective lien, 
 going back to the teste of the writ, was abused ; writs were taken 
 out one under another, so as to obtain liens upon the goods of debt- 
 ors, without delivering them to the sheriff, by which means their 
 sales and all commerce were made uncertain. To prevent which 
 it was declared, by the statute of frauds, that the goods should be 
 bound only from actual delivery of the writ to the sheriff; by 
 which the old law was, in effect, restored, whicH supposed the writ 
 to be delivered to the sheriff immediately from the teste. Gilbert 
 on Ex. 14. 
 
 The mere seizure under the fieri facias does not absolutely or 
 totally divest the defendant of all property in the goods taken ; but 
 the sheriff thereby acquires only a qualified property in them ; com- 
 mensurate, however, in all respects, to the performance of the 
 [449\ duties assigned him by the writ. He is responsible for the 
 safety of the property, and therefore may have an action against 
 any wrongdoer who attempts to injure it, or to take it from him, 
 Yet, if before a sale the defendant pays to the sheriff the whole 
 debt and costs, he is bound to redeliver the property so taken in 
 execution. The statute of frauds was intended for the benefit of 
 purchasers and creditors only; therefore, still, as relates to the 
 party himself, the judgment and fieri facias relate to the first' day 
 of the term, or at least to the teste of the writ ; so that if it be tested 
 in the defendant's lifetime it may be taken out and executed after 
 his death. Tidd's Practice 915 ; Odes v. Woodward, 2 Lord Ray- 
 mond, 850. And so, on the other hand, if the plaintiff dies, 
 after a fieri facias has been sued out, it may nevertheless be exe- 
 cuted. And as the writ commands the sheriff to bring the money 
 into court, it is His duty to do so accordingly, so that it may be 
 there deposited to be paid, if the plaintiff be dead, to his executor 
 or administrator, when he shall appear; or, if the defendant be 
 dead, that the surplus, if any, may be paid to his legal representa- 
 tives when they may come prepared to show their right to it. 
 
182 WHAT MAY BE TAKEN. 
 
 Hence it is clear that this positive command of the writ, virtually 
 and necessarily intercepts the property in its course, and evicts it 
 from the hands of the executor or administrator of the deceased 
 defendant, who died after it bore teste. Wilbraham v. Snow, 2 
 Saund, 47; Waghorne v. Langmead, i Bos. & Pul. 572. 
 
 These are the well settled principles of law in relation to the 
 personal property of the defendant against whom the fieri facias. 
 issued. But, as in England real estate cannot be taken in execu- 
 tion under a fieri facias, there are no English adjudications 
 in relation to a case like this, where the fieri facias had been levied 
 upon the real estate of the debtor. But the statute, which sub- 
 jected lands to be sold for the payment of debts has been so 
 interpreted, and carried into effect here, as to make no distinction 
 whatever between the debtor's real and personal estate, so far as it 
 may be affected by any execution bearing teste in his lifetime. Bar- 
 ney v. Patterson, 6 H. & J. 1-82 ; Davidson v. Beatty, 3 H. & McH. 
 616. And therefore by analogy to the principles of the English law, 
 applicable to an execution against the personalty, it has been held 
 [450] in this, and in other States, in which this English statute 
 has been received, that by a fieri facias which bears teste, or has 
 been levied, during the lifetime of the defendant, his real estate 
 may be intercepted in its descent and evicted from the hands of his 
 heir ; who, if he happens to have obtained actual possession of the 
 estate after the death of his ancestor, will be treated merely as a 
 terre-tenant, whose interest cannot be allowed, in any manner, to 
 retar^, or turn aside the execution which had been thus, in fact, or 
 by relation, sued out in the life.time of the debtor. Harbert's Case, 
 3 Coke II : Winsteadv. Winstead, 1 Hayw.(N.Car.) 243. Whence 
 it clearly follows that the sale of Jesse Jones' lands made after his 
 death under the fieri facias issued on Dawson's judgment was, in 
 all respects, regular and lawful. * * * 
 
 The writ of fieri facias commands the sheriff to have the 
 money in court, there publicly to pay the party. Jle may himself 
 pay the plaintiff ; but if he does so, it will be at his peril ; for he is 
 only perfectly safe in bringing the money into court, according to 
 the express command of the writ. The sheriff cannot deliver the 
 property taken in execution to the plaintiff in satisfaction of his 
 claim ; he must sell it and bring in the money. * * * 
 
UNDER EXECUTION. 183 
 
 In the case now under consideration the court is informed, by 
 the bill, that the surplus of the proceeds of the sale of the real 
 estate of the late Jesse Jones, yet remains in the hands of the 
 sheriff, who made the sale, in obedience to a writ of fieri facias, 
 which emanated from the court of appeals of the eastern shore; 
 and further, that there has been no administrator appointed to take 
 ' charge of the personal estate of the intestate Jesse Jones. * * * 
 
 Supposing however, that an administrator of the late Jesse 
 Jones was here as a party to this suit; even then, this defendant 
 Brown, the late sheriff, as regards his possession of this surplus, 
 must be [461] considered as an officer of the court of appeals. 
 But can the Chancellor order money, which has been legally placed 
 in the hands of an officer of the court of appeals, subject to their 
 control, to be brought into this court, to be disposed of here as 
 may be deemed right, among the parties to this suit ? This court j 
 might order an administrator, if there was such a person here as 
 a party to this suit, to move the court of appeals to direct their 
 officer, this sheriff, to pay this surplus to him the administrator. 
 But the Chancellor can give no such direction to this sheriff ; be- 
 cause in undertaking to control an officer of the court of appeals 
 as to any disposition of money placed in his hands by their author- 
 ity, the Chancellor would thus bring this court into direct conflict 
 with the jurisdiction of that tribunal, which certainly ought not to 
 be done in any manner or under any circumstances whatever. * * * 
 Whereupon it is ordered that this case stand over, ivith leave to 
 amend and to make proper parties. 
 
 C. The Personal Estate of the Debtor. 
 
 Any corporeal property which may be taken by garnishment may 
 be taken by execution, for when judgment is rendered against the gar- 
 nishee for specific property found to be in his possession and to belong 
 to the debtor, the garnishee discharges himself by surrendering that 
 property, to the officer holding the execution on the judgment against 
 him, and the officer proceeds to a sale of it under the execution in the 
 same manner as if then originally levied under such execution. On the 
 other hand any personalty liable to execution is, with a few exceptions 
 hereinafter noted, liable to garnishment. Therefore these questions 
 will be considered together later in this chapter. 
 
184 WHAT MAY BE TAKEN. 
 
 2. UNDER ATTACHMENT. 
 
 A. Comparative Scope of This and Other Processes. 
 
 HANDY V. DOBBIN. 
 12 Johnson Rep. (New York) 220. (1815) 
 
 Liability of IVIoney and Bank-Bills to Attachment and Execution — Com- 
 parative Scope of the Processes. 
 
 Attachment in justice court by Dobbin against Handy levied 
 on two five-dollar bank bills belonging to Handy. Defendant 
 brings error on certiorari from judgment for plaintiff in the jus- 
 tice's court. The only error relied on was that these bills were 
 not liable to'be attached. 
 
 The Court by Spencer, J. There can be no doubt that the 
 constable, under the attachment, could take any goods and chat- 
 tels, which could be levied on by execution. The authority in both 
 cases is the same. Bank hills are treated, civiliter, as money; a 
 tender in them is good, unless it be specially objected to at the 
 time. The question then is narrowed to this, Can money be levied 
 on by an execution? This court, in Williams v. Rogers, (5 Johns. 
 167), intimated strongly their concurrence in the decision of the 
 supreme court of the United States on this point. In that case, 
 {Turner v. Fendall, 1 Cranch, 133), all the cases on the point were 
 reviewed, and it was held that money could be levied on. We now 
 fully concur in the doctrine there advanced; we perceive no ob- 
 jection in principle, why money should not be taken in execution. 
 It is the goods and chattels of the party; and it appears to us to 
 comport with good policy as well as justice, to subject every thing 
 of a tangible nature, excepting such things as the humanity of the 
 law preserves to a debtor, and mere chases in action, to the satis- 
 faction of a debtor's debts. 
 
 Judgment affirmed. 
 
UNDER ATTACHMENT. 185 
 
 B, Importance of Personal Service on the Debtor. 
 
 CONN V. CALDWELL. 
 6 Illinois (l Gilra.) 531. (1844) 
 
 Proper Form of Execution on Judgment in Action Commenced by At- 
 
 tacliment — Effect of Personai Service — Effect of Appearance — 
 
 Abandonment of Levy by Giving up Possession. 
 
 Attachment. Defendants bring error. Modified. 
 
 A. W. Jones, for appellants. 
 
 N. D. Strong, and /. H. Hall, for appellee. 
 
 The Court by Treat, J. On the 24th day of February, 
 1842, Joseph Caldwell sued out of the Madison circuit court, an 
 attachment against Joseph H. Conn, James R. Sprigg and William 
 W. Greene. The writ of attachment was levied on certain real 
 estate, and on the steamboats "Capsian" and "Osage." The sher- 
 iff's return stated, that on the day succeeding the levy, the steam- 
 boats were released by order of the sheriff. 
 
 The declaration was in assumpsit, on three promissory notes. 
 The defendants appeared and pleaded non assumpsit. On the 4th 
 day of October, 1842, this issue was heard by the court, and found 
 for plaintiff, and his damages assessed at the sum of $12,923.46. 
 A judgment was thereupon rendered, that the plaintiff recover of 
 the defendants the said sum and costs ; that he have execution 
 therefor, to be levied of the real estate attached, and the steam- 
 boats "Capsian" and "Osage;" and also, that he have execution 
 generally for his damages and costs. To reverse that judgment, 
 the defendants prosecute a writ of error. 
 
 Since the suing out of the writ of error, the original return of 
 the sheriff on the writ of attachment has been amended in the cir- 
 cuit court, and the amendment certified into this court, and made 
 part of the record. It appears from the amended return, that the 
 steamboat "Osage," at the time of the levy, was freighted and on 
 her passage from St. Louis to the ports on the Illinois river ; that it 
 was agreed between the plaintiff and the master, that the boat 
 should proceed on her voyage, and return, and be delivered to the 
 sheriff, subject to the attachment; that the boat was thereupon 
 released, for the purpose of the voyage, but has never been re- 
 delivered. 
 
186 WHAT MAY BE TAKEN. 
 
 The errors assigned questioned the propriety of the judgment 
 entered. It is insisted in the first place, that the judgment [536] 
 is erroneous, because it awards execution generally against the 
 defendants. 
 
 Where a judgment in default is rendered in a suit by attach- 
 ment, without personal service of process on the defendant, the 
 judgment' is in rem, and the estate attached is alone liable for its 
 payment. In such case, a special execution issues for the sale of 
 the specific property.. But where the defendant is served with 
 process, or appears to the action, the judgment is in personam, and 
 the plaintiff is entitled to a general execution thereon. In this 
 case, the defendants pleaded to the declaration, and the cause was 
 fully determined to the merits. The judgment is, therefore, as 
 conclusive between the parties, as if the action had been instituted 
 in the ordinary way. The plaintiff having the right to a general 
 execution on the judgment, the court committed no error in award- 
 ing it. 
 
 In the next place, it is insisted that the judgment is erroneous 
 in awarding a special execution. It is contended, that the prop- 
 erty attached was released by the appearance of the defendants.. 
 This position is not tenable. This precise question was before 
 this court at the present term, in the case of Martin v. Dryden, 
 6 111. 187. This court there held, that an appearance of the de- 
 fendant did not, of itself, discharge the property attached ; but that 
 the defendant in order to release it from the lien acquired by the 
 levy, must either replevy the property, or give security for the pay- 
 ment of whatever judgment may be rendered in the cause, as pro- 
 vided in the 29th section of the Attachment Act. In this case the 
 defendants neither replevied the property, nor gave special bail. 
 The lien created by the levy became perfect by the judgment, and 
 the plaintiff was entitled to a special execution for the sale of the 
 property, except such as he had voluntarily relinquished. 
 
 The circuit court decided correctly in embracing the steam 
 boat "Osage" in the award of execution. That boat was released 
 from the custody of the sheriff, for the purpose of the voyage, with 
 the express understanding that the boat should be re-delivered and 
 continue subject to the attachment. [33/] The lien on the boat 
 
UNDER GARNISHMENT. 187 
 
 was not thereby extinguished, but still subsists as between the par- 
 ties to this suit. If, in the meantime, third persons have become 
 interested in the boat, a different question may arise. 
 
 The steam boat "Caspian" was absolutely released, and the 
 judgment is erroneous in including it in the award of execution. 
 For this error, the judgment must be reversed with costs. The 
 cause, however, need not be remanded. It was fully adjudicated 
 in the court below, and the proper judgment can be entered in this 
 court. A judgment must be rendered here, that the plaintiff re- 
 cover of the defendants the sum of $12,923.46, with legal interest 
 from the 4th day of October, 1842. On this judgment, the plaintiff 
 can have execution generally, and also a special execution for the 
 sale of the real estate attached, and the steam boat "Osage." 
 
 Judgment reversed. 
 
 3. UNDER GARNISHMENT. 
 
 A. General Principles and Grounds of Liability. 
 
 ALLEN V. HALL. 
 46 Massachusetts (s Mete.) 263. (1842) 
 
 Grounds for Charging Garnishee — Measure of Liability — Defenses — 
 
 Comparative Lien on Credits and Property Possessed — 
 
 Proceedings Necessary to Perfect Attachment 
 
 Lien — Effect of Departure. 
 
 -F. Hilliard, for the plaintiff. 
 
 Griggs, for the defendant. 
 
 The Court by Shaw, C. J. In scire facias against a trustee. 
 The question is, whether the defendant can set off demands, which 
 he had at the tirne he was summoned in the suit, against Joseph 
 Tufts, the principal defendant. 
 
 The trustee process, provided for by statute, manifestly con- 
 templates two distinct classes of cases, in which a creditor may 
 avail himself of its provisions to secure his debt, by attaching prop- 
 erty in the hands of a third person ; the one, when the trustee has 
 in his custody, or under his control, goods or chattels, liable by law 
 to be attached on mesne process, by the ordinary writ of attach- 
 ment ; the other, where the trustee is a debtor to the principal de- 
 fendant, and owes him money, either due and payable presently, 
 or existing as a debt at the time of the attachment, though payable 
 
188 WHAT MAY BE TAKEN. 
 
 at a future day. Maine F. & M. Ins. Co. v. Weeks, 7 Mass. 438 ; 
 Swett V. Brown, 5 Pick. 178. 
 
 This distinction is founded on the statute rendering goods and 
 {265] credits, respectively, liable to attachment. In the former 
 case, the attachment binds the goods specifically, creates a lien 
 upon them, of the same nature and to the same extent, as an ordi- 
 nary attachment on mesne process, although the goods are to stand 
 charged, in the hands of the trustee, so that the custody remains 
 with the trustee, instead of being taken by the attaching officer, 
 unless a subsequent attachment is made by another creditor, which 
 may be done, subject to the first attachment. Parker v. Kinsman, 
 8 Mass. 486; Burlingame, v. Bell, 16 Mass. 318. But in both 
 cases, the goods thus charged are deemed to be in the custody of 
 the law, and they are made applicable to the purpose for which 
 they are attached and held, in the same manner ; that is, by being 
 advertised and sold by the officer on execution, and the proceeds 
 applied to its satisfaction. The only diflference is, that in the case 
 of the trustee attachment, the goods, having remained in the cus- 
 tody of the trustee, must be by him exposed and delivered over to 
 the officer holding the execution ; whereas, in the case of an attach- 
 ment by the ordinary process, the goods are in the custody of the 
 officer, ready to be sold on the execution, when it comes into his 
 hands for satisfaction. 
 
 But under the other clause of the statute, rendering credits 
 liable to be attached, the case is wholly different. It affects an- 
 other species of property, and accomplishes its purposes in an en- 
 tirely different mode. The great question then, the only question 
 is, whether he owes the principal debtor any thing; and if it ap- 
 pears that he does, he is held liable to pay it to his creditor's credi- 
 tor, instead of paying it to the creditor himself. It is unnecessary 
 here to consider the various questions which may arise, as to the 
 nature of such debts, whether absolute or contingent, and the na- 
 ture of such contingency ; whether, if uncertain at the time, it can 
 be made certain at a future time, by sales, collections of money or 
 other proceedings, showing that in point of fact the trustee was a 
 debtor to the principal at the time of the attachment. In such 
 cases, although the facts are subsequently disclosed, and the ac- 
 
UNDER GARNISHMENT. 189 
 
 counts subsequently adjusted, in order to [266] charge the trus- 
 tee, the result must show that thel-ustee was a debtor to the prin- 
 cipal, at the time of the attachment. 
 
 This distinction between the two classes of cases will go far 
 to show in what cases the trustee may or may not set off such 
 claims as he may have against the principal debtor, and to recon- 
 cile what may, without discrimination, be deemed to be conflicting 
 authprities. 
 
 On the provision, in which the trustee is charged as a debtor, 
 it is very obvious that he is a mere third party, called in to pay his 
 debt, in a manner different from that in which he was bound to 
 pay it, and in which his own rights are not drawn into controversy, 
 he ought not to be placed in a worse situation than he would be if 
 he were called to make the settlement with his creditor. The bal- 
 ance only, after all just allowances, is the sum for which he ought 
 to be held. He shall therefore have the benefit of a set-off, legal ' 
 or equitable, in his own right, or in the right of those with whom 
 he is in privy, and in whose favor the debt claimed to be due from 
 the trustee could, in his hands, be made available, by way of set-off • 
 in any of the modes provided by law. Hathaway v. Russell, 16 
 Mass. 473 ; PicgM^i V. 5waM, 4 Mason, 443, (Fed. Cas. No. 11133). 
 
 But where the trustee has goods in his custody, the property 
 of the principal defendant, and in their nature liable to be attached 
 by the process of law, the question, whether the trustee has any 
 right to set off claims of his own, must depend upon the fact 
 whether he has any lien, legal or equitable, upon such goods, or 
 any right, as against the owner, as whose property they are at- 
 tached, by contract, by custom, or otherwise, to hold the goods, or 
 to retain the possession of them, in security of some debt or claim 
 of his own. If the party, who is summoned as trustee, has a mere 
 naked possession of the goods, without any special property or 
 lien ; if the principal debtor is the owner, and has a present right 
 of possession, so that he might lawfully take them out of the cus- 
 tody, or authorize another to take them out of the custody, of the 
 present holder ; they would be liable to be attached as the property 
 of the general owner, by an officer, under the common process of 
 attachment, if he could have access [26/] to them, and no right of 
 
190 WHAT MAY BE TAKEN. 
 
 the trustee would be violated. But if the officer cannot have ac- 
 cess to the goods, so as to take them into custody ; if they are se- 
 creted by the trustee, or if the trustee sets up pretended claims and 
 rights of possession, so that the creditor and officer cannot safely 
 take them out of the custody of the trustee, and require the answer 
 and disclosure of the trustee, as to the grounds of his claim to the 
 ' property or possession ; then he may be summoned ^s trustee ; and 
 if it shall subsequently appear, on his disclosures, that he had 
 only such naked possession, without any lien or right of possession, 
 then the goods stand charged in his hands, till judgment and exe- 
 I cution ; and he has no greater right to charge these goods with a 
 debt of his own, by way of set-off, than he would have had, if the 
 goods had been taken into custody by the officer, at the time of the 
 attachment. This, we think, is the result of the laws on this sub- 
 ject. Allen V. Megguire, 15 Mass. 490; Swett v. Brown, '5 Pick. 
 178; Brewer v. Pitkin, 11 Pick. 298. 
 
 We are next to consider how these principles apply to the 
 facts of the present case. It appears that the respondent. Hall, 
 sued out a writ against his debtor, Joseph Tufts, and caused his 
 goods to be attached by an officer. Before judgment, without the 
 consent of the debtor, and without the appraisement and certifi- 
 cate required by law to warrant a sale of .goods attached on mesne 
 process, the defendant caused the goods to be sold, and himself 
 became the purchaser of the greater part of them, and, for aught 
 that appears in his answers, had them in his possession at the time 
 of the service of this trustee process. This sale, it is manifest, 
 was wholly void, being not conformable to the Rev. Sts. c. 90, and 
 not authorized by law. Howe v. Starkweather, 17 Mass. 240; 
 Russell V. Dudley, 3 Met. 147. 
 
 The respondent obtained the bare custody of the goods, with- 
 out lawful possession or right of possession. If the respondent 
 could have the goods in security of his original debt against Tufts, 
 or set off that debt, under this process, he would in effect get pos- 
 session of his debtor's goods, under color of legal process, without 
 conforming to the requisitions of law, and thus avail himself of 
 such unauthorized possession, to the same extent [ 2(55] as if he 
 had taken and sold the goods on execution in conformity to law ; 
 
UNDER GARNISHMENT. 191 
 
 which he cannot do. The court are of opinion that upon his an- 
 swers, the respondent was chargeable for the goods of Tufts, 
 when they thus came into his possession, and that not having ex- 
 posed and dehvered them over to be sold, when demanded on the 
 execution, he is now answerable on this scire facias, for their value. - 
 
 B. Charging the Garnishee for Property in His Possession. 
 
 a. PROPERTY CAPABLE OF LEVY UNDER ATTACHMENT OR 
 EXECUTION. 
 
 See tlie following case and notes to same. 
 
 b. NECESSARY TITLE IN GARNISHEE. 
 
 BROWN V. DAVIS. 
 18 Vermont 211. (1846) 
 
 Property Which iViight Be Seized, Liability to Garnishment — Character 
 of Possession Necessary — Right to Retain. 
 
 Trustee process by Jerusha Brown against Josiah Davis, prin- 
 cipal debtor, and against James M. Hacket as his trustee. Judg- 
 ment for plaintiff. Trustee excepted. Affirmed. 
 
 The trustee disclosed, at the June term, 1844, of Addison 
 county court, that he had no goods, etc., of the prin- 
 cipal debtor, Davis, in his hands, or possession, except 
 that in the preceding March, Davis had permitted the trus- 
 tee to take a wagon, belonging to him, to use ; that he did not pur- 
 chase the wagon, nor agree upon any price for the use of it ; that 
 Davis had controlled the wagon when he pleased, and the trustee 
 had used it in his business, when necessary ; that the trustee had no 
 claim upon the wagon, nor any right to use it any longer than 
 Davis should choose to leave it in his possession ; and that the 
 wagon was, at the time of disclosure, on the premises of the trus- 
 tee, subject to the control of Davis, or of any other person, who 
 could legally claim it. 
 
 P. C. Tucker, for trustee. 
 
 /. Pierpoint,, for plaintiff. 
 
 The Court by Kellogg, J. The main objection, urged 
 to the maintenance of this suit against the trustee, 
 is that the wagon was not so intrusted or deposited 
 
s 
 
 192 WHAT MAY BE TAKEN. 
 
 with the trustee, but that it might have been attached by 
 the ordinary process of law, and consequently that Hacket ought 
 not to be adjudged trustee. And we are referred to two cases in 
 Massachusetts as sustaining this proposition. In Allen v. Meg- 
 guire, 15 Mass. 490, the court say, "If the specific articles, which 
 the supposed trustee has in his possession, might be come at to be 
 attached, the trustee process is not the proper remedy; for that^ 
 will lie only, where the goods, etc., cannot be come at to be attached 
 by the ordinary process of law." In that case the trustee claimed 
 that he had a lien upon the property, though in fact he had none ;. 
 and of course the property might have been attached by the ordi- 
 nary process of law ; yet the court held that he was trustee, inas- 
 much as he claimed a lien upon the goods, when he had none, and 
 inasmuch as he did not disclose any thing, from which it might be 
 inferred that [214] he exposed them to attachment. The court 
 seem to have attached importance to the fact, that the trustee did 
 not expose the property to attachment, and it may be inferred from 
 the case, that, had not the trustee claimed a lien upon the property, 
 and had he offered it to the officer to be attached, he would not 
 have been held as trustee. 
 
 The case of Burlingame v. Bell, 16 Mass. 320, is an authority 
 to the same effect as the case last cited. It is a sufficient answer 
 to those cases, that the decisions are founded upon the peculiar 
 provisions of the statute of Massachusetts regulating trustee pro- 
 cess, which is essentially different from that of this State, and con- 
 sequently can have no legitimate bearing upon the case at bar. By 
 their statute it is, in express terms, made indispensable to the main- 
 tenance of the trustee suit, that the property should be so intrusted 
 or deposited in the hands of the trustee, that the same cannot he' 
 attached by the ordinary process of lazv. Nonsuch -provision is 
 to be^ found in our statute. In the absence of aoy adjudged cas^s 
 which are in point, the question before us must be determined by 
 reference to our statute regulating the trustee process. 
 
 We think the case at bar is clearly within the letter and spirit 
 of the statute, and that Hacket was properly adjudged trustee. 
 
 Consequently the judgment of the county court is affirmed. 
 
 The peculiarity in the statute of Massachusetts is in the title which 
 
UNDER GARNISHMENT. 193 
 
 reads: "An act to enable creditors to receive their just demands 
 out of the goods, effects and credits of their debtors which cannot be 
 attached by the ordinary process of law." Laws, Mass. 1794, Ch. 64. 
 Compare "Wilson v. Harris, 21 Mont. 374, 54 Pac. 46, where the whole 
 question is discussed by a divided court. Upon the same point see also 
 Hooper V. Day, 19 Me. 56, 36 Am. Dec. 734. 
 
 I am aware of no other decisions not in harmony with Brown v. 
 Davis. In both the Massachusetts cases above cited the garnishee was 
 charged. 
 
 ' C. NECESSARY POWER OF CONTROL BY GARNISHEE. 
 
 FIRST NATIONAL BANK v. DAVENPORT & ST. PAUL RY. CO. 
 45 Iowa 120. (1876) 
 
 Garnishment— Character of Possession Necessary to Render Gar- 
 nishee Chargeable — Servant as Garnishee of IVIaster. 
 
 Judgment being recovered by the First Nat. Bank against the 
 Davenport & St. P. Ry. Co. and the Davenport Ry. Con. Co., J. 
 S. Conner was summoned as garnishee under an execution issued 
 thereon. From an order discharging said garnishee plaintiff ap- 
 peals. Reversed. 
 
 Grant, & Smith and C. Whitaker, for appellant. 
 
 Brown & Campbell, for appellee. 
 
 The Court by Day, J. * * * The answer of the garnishee 
 shows that he was auditor and cashier of the operating department 
 of the Davenport Railway Construction Company. As auditor he 
 had charge of the accounts, examined agents' reports, and kept the 
 books. As cashier it was his duty to examine and receipt for the 
 cash remitted by the agents, to make collections from the roads, 
 and to cause anything to be done necessary to the prompt and 
 regular collection of the earnings of the road, and to make such 
 disposition of the cash in hand as he was directed to make from 
 time to time by the general manager. Smith. At the time of his 
 garnishment he had on hand, of money so received, belonging to 
 the operating department of the Davenport Railway Construction 
 Company, $3,443. This money was kept in a safe provided by the 
 construction company, to which the garnishee alone had a key. 
 The garnishee claims that he is not liable because he did not have \ • 
 independent control of the money, but was under obligation to dis- I ' 
 pose of it as directed by his superiors. The position of appellee 
 cannot be better expressed than in the following quotation from 
 
 the argument of his counsel : "The fallacy of the plaintiff's argu- 
 
 ii 
 
194 WHAT MAY BE TAKEN. 
 
 merit consists in assuming that the garnishee had these moneys in 
 his possession and in his custody or under his control, a fact which 
 has not only not been proved, but the contrary most clearly and dis- 
 tinctly appears. The possession and control of property contem- 
 plated by the statute, does not mean the mere physical power to 
 take possession of it and carry it off ; but the independent posses- 
 sion — the present and immediate rightful custody of it, including 
 the right to retain that possession, and to maintain that custody 
 and control of it. [128] The law does not require that the gar- 
 nishee should commit a trespass, or a gross breach of faith, in 
 order to obtain or retain possession of the attached property." 
 
 Appellee, in assuming that the possession which will warrant 
 the process of garnishment must be an independent possession, 
 coupled with the right to retain possession and maintain custody 
 and control is, we think, clearly in error. Aside from express con- 
 tract, one does not obtain such possession and control of the prop- 
 erty of another. Suppose a party makes a simple deposit of 
 money in a bank, without any agreement as to the time the dep>osit 
 shall remain. The bank holds the money entirely subject to the 
 control of the owner. It cannot rightfully hold the money an hour 
 after the owner has directed it to be paid out. Yet it cannot be 
 questioned that, while the money remains in the bank, the bank 
 may be garnished. Suppose garnishment process served upon the 
 bank, and that afterward the owner orders the money to be paid 
 out in a particular way. Does the bank commit a breach of faith 
 in holding the money, and refusing to dispose of it as directed by 
 the owner ? 
 
 The fallacy of the appellee's argument is in placing the duty 
 ■of the garnishee to his principal above his duty to obey the man- 
 date of the law. It may be conceded that the answer of the gar- 
 nishee fully discloses that it was his duty to pay out the money in 
 his possession as ordered by Smith; but the process of the court 
 imposed upon him a paramount duty to retain it in his possession, 
 and an obedience to that order would not render him a trespasser, 
 nor involve him in a breach of faith. We think appellee's counsel 
 concede enough to" establish the liability of this garnishee. In 
 their argument they say : "We do not take the ground * * * that 
 Conner cannot be held because he was an employe, and not an 
 
UNDER GARNISHMENT. 195 
 
 officer of the corporation. Art employe may clearly have such 
 possession — such custody and control of the property of his 
 employer as to subject it to garnishment in his hands. It depends 
 altogether upon the nature of the employment. For instance, the 
 agent of a railroad at one of its stations certainly has the unquali- 
 fied and independent possession [i2p] and control of the moneys 
 of the company which come into his hands. He is only an employe 
 yet the nature of his employment and of his duties may, and prob- 
 ably would, render the moneys in his hands subject to garnish- 
 ment. He has the independent possession, control and custody of 
 those moneys ; while the cashier whom the company might employ 
 to assist him in his work, by looking after and keeping accounts of 
 those moneys, would not have any such possession and control of 
 them." 
 
 Yet, these station agents are subordinate to the garnishee in 
 this case, and are required to remit to him the moneys by them 
 collected. Suppose such an agent had been garnished, and he had 
 -immediately been removed, and ordered to pay over all the moneys 
 in his hands to Conner. Could he afterward retain the money 
 without a gross breach of faith ? If he could, we are unable to see 
 why the garnishee in this case may not do the same; and if he 
 could not, it is apparent that a railway company may, at pleasure, 
 render the process of garnishment unavailing. We are satisfied 
 that the appellee had such custody and control of the money in! 
 question as to render it subject to garnishment in his hands. He 
 should have retained that possession, and held the money subject 
 to the order of the court. In failing to do so he has magnified his 
 duty to his employer, and has ignored his obligations to the law. 
 The court should have held him liable upon his answer. 
 
 Reversed. 
 
 It is believed that the above decision announces the correct rule, 
 and it is supported by the weight of authority. See review of decis- 
 ions in Rood, Garnish. §§ 42 and 43. But in cases of this exact kind, 
 decisions to the contrary will be found in Pennsylvania, Maine, Tennes' 
 see, Kentucky and Missouri. Fowler v. Railway Co., 35 Pa. St. 22; 
 Sprague v. Steam Nav. Co. 52 Me. 592; Wilder v. Shea, 13 Bush. (Ky.)' 
 128; Mueth v. Schardin, 4 Mo. App. 403. 
 
 The character of the conflict in the authorities will be seen by 
 reading the following abstract from a decision reversing a judgment 
 
196 WHAT MAY BE TAKEN. 
 
 against a treasurer of a railroad company as garnishee of the com- 
 pany: "It is not every kind of holding that constitutes the possession 
 designated, nor every possibility of power over the property that gives 
 the control hecessary to make it garnishable. The servant Who rides 
 his master's horse to water, or keeps the keys of the stable, and has 
 access to and power to take and use the horse, has not the garnishable 
 possession and control, by reason merely of such custody and power. 
 And so, too, the clerk in the store, who has access to the merch- 
 ant's safe, and has charge and sale of the merchant's goods, and the 
 power to receive and pay out money from the drawer or safe, has not, 
 by reason merely of such charge and power, the garnishable posses- 
 sion and control of the merchandise and money. Such custody and 
 power may exist with the clerk, and still, the merchandise and money 
 not be in his possession and control in such wise as to make them the 
 subject of garnishment in his ha,nds. The custody and power must go 
 beyond such occupation or holding and service, to constitute the gar- 
 nishable possession and control. Where to draw the line, and precisely 
 to define the rule, is difficult and not safe to attempt — upon one side of 
 which exists, and on the other side does not exist, the garnishable con- 
 dition of the properties. It is safe, however, to say, that mere employ- 
 ment in the service of the owner, in and about his properties, and the 
 physical power, by reason of such employment, to handle, remove, re- 
 turn such properties, to receive and pay out monies of the owner, do 
 not constitute the possession and control of the properties contem- 
 plated by the law of garnishment. Though such employment gives a 
 degree of physical power over the properties, the possession and con- 
 trol exist with the owner, and not with the employe or servant. Of 
 course such employment may exist, under circumstances with relation 
 to the properties, as to invest the employe with such possession and 
 control as to make them the subject of garnishment in his hands. It is 
 obvious enough, that employment and possession of the garnishable 
 chai;acter, may co-exist. But where the actual and substantial posses- 
 sion is with the owner, and the relation of the servant or employe to 
 the properties is such only as is incident to the employment and serv- 
 ice, the properties are not subject to garnishment as being in the pos- 
 session or control of the servant or employe. 
 
 "The servant who feeds and waters and curries the master's horse, 
 and keeps the key of the stable, the master having the actual and dom- 
 inant possession and control; the clerk who opens and shuts the store, 
 and sells the goods, and has charge of the keys of the money drawer 
 and safe, subordinate to the actual possession and control of the mer- 
 chant; the treasurer of the corporation, who has charge of the safe and 
 the moneys therein, and receives and pays out under the Immediate 
 dlrefction and control of the principal corporate officers, are not deemed 
 in such possession and control of the propertieSj as subjects them, the 
 employes and properties, to garnishment. In such and the like oases, 
 the question is, whether the actual and substantial 'possession Is with 
 the employe, or whether his relation to the properties is merely of em- 
 
UNDER GARNISHMENT. 197 
 
 ployment and service, while tl^e real possession and control is with the 
 owner or some other?" McGraw v. Memphis & O. Ry. Co., [1868] 45 
 Tenn. (5 Coldwell) 434. 
 
 d. EFFECT OF POSSESSION OF LEGAL TITLE WITHOUT ACTUAL 
 POSSESSION OF THE PROPERTY. 
 
 GUTTERSON v. MORSE. 
 S8 New Hampshire 529. (1879) 
 
 Garnishment — Character of Possession Necessary to Render Garnishee 
 Chargeable — Possession of Legal Title — Fraudulent Convey- 
 ance, Estoppel — Garnishee's Liability for Property 
 Destroyed after Service — Costs. 
 
 Foreign attachment. Defendant deeded his farm and gave a 
 bill of sale of his personal property to the trustee to defraud credi- 
 tors, but retained physical possession and control of the land and^ 
 of all the personal property except a yoke of oxen. 
 
 Mugridge, for plaintififs. 
 
 A. L. Norris and Fowler, for trustee. 
 
 The Court by Doe, C. J. The sum of $80, received 
 by the trustee for the ox he sold, is held by the attachment./ Pitts- 
 field Bank V. Clough, 43 N. H. 178. He is not chargeable for the 
 property of which he did not have possession when the writ was 
 served on him, or afterwards. Gen. St., c. 230, s. 28. When a 
 trustee is adjudged chargeable for any specific articles in his pos- 
 session, the execution, issued against the defendant, contains a pre- 
 cept to levy the same thereon ; and if the trustee neglects or refuses 
 to deliver the articles to the officer having the execution, on 
 request, execution is issued against him, upon notice, as for his 
 own debt, for the value thereof. Gen. St., c. 230, ss. 38, 39. 
 He is required to deliver the articles to the officer, not because the 
 duty of taking possession of them is imposed upon' him by the ser- 
 vice of the writ, but because of the service of the writ attaching 
 them in his possession, he is made trustee, and, for some purposes, 
 his possession is made the custody of the law. By direct attach- 
 ment, the plaintiffs, avoiding the bill of sale, might acquire a lien 
 upon the property whether found in the defendant's or the trus- 
 tee's possession. In this process of foreign attachment, the trus- 
 tee can be required to give up property of which the attachment 
 made him legal custodian, and of which he has no title or right of 
 
198 WHAT MAY BE TAKEN. 
 
 possession that he can assert against the plaintiffs ; but he cannot 
 be required to give up what he never had, or what, being returned 
 to the defendant before the attachment, has remained in the de- 
 fendant's possession. 
 
 The plaintiffs contend that the defendant carried on the fafm 
 as agent of the trustee, and that the defendant's possession of the 
 farm and personal property was the trustee's possession. But the 
 defendant's agency was a pretence, and a part of the fraudulent 
 transaction. By trustee process, B is not made the trustee of A's 
 chattels, on the ground that they are A's property, in A's posses- 
 sion, under cover of a fraudulent sale to B, and a fraudulent 
 agency of A. Fraud, in this case, might invalidate the bill of sale 
 and the title founded thereon; but the fiction of the defendant's 
 agency did not transfer the possession of the defendant's property 
 from the defendant to the trustee so as to make the trustee charge- 
 able for such property in this equitable proceeding. There being 
 no consideration for the conveyance, and the purpose being to 
 defeat the defendant's creditors, the defendant's agency was 
 feigned. The trustee's title and the defendant's agency were a 
 cover which may be removed from the defendant's chattels in the 
 defendant's possession. The trustee cannot be charged for them 
 [331] if the cover is not removed. Its removal does not show 
 that the simulated agency was a real one. 
 
 It is argued that the trustee is estopped to deny his possession 
 and the agency which he set up as a cover for the defendant's prop- 
 erty. But the plaintiffs were not induced to change their position 
 by their reliance upon a possession held by the trustee through the 
 agency of the defendant. On the contrary, they brought this suit 
 relying upon the fact that there was no such agency and no such 
 possession. It is a part of the plaintiff's case that such agency and 
 possession, which did not exist if the trustee had no title, were as 
 unreal as his title. 
 
 It does not appear that the plaintiffs can, by this process, 
 obtain anything of value from the ox that died in the trustee's pos- 
 session. 
 
 The trustee is liable for costs on the ground of fraud. Gen. 
 St., c. 230, J. 43 ; Kent v. Hutchins, 50 N. H. 92. 
 
 Trustee charged for $80 and costs. 
 
UNDER GARNISHMENT. 199 
 
 AVERY V. MONROE. 
 172 Massachusetts 132, 51 N. E. 452. (1898) 
 
 Garnishment — Character of Possession Necessary to Render Garnishee 
 Chargeable — Assignment for Benefit of Creditors — Presumptions. 
 
 Trustee process. Trustee charged and excepts. , Affirmed. 
 
 F. W. Blackmer & E. H. Vaughan, for trustee. 
 
 A. A. Wyman, for plaintiff. 
 
 The Court by Holmes, J. At the time of the service: of the 
 writ in this action the person sought to be charged as trustee had 
 accepted from the principal defendants a conveyance of all their 
 property not exempt from attachment, consisting mainly of 
 machinery, supplies and stock on hand in a shoe factory, and book 
 accounts, in trust for the defendants' creditors, but had done noth- 
 ing about [133] taking possession of the property. No creditors 
 appear to have become parties to the deed. The question before 
 us is whether these facts warranted the Superior Court in charg- 
 ing the trustee. 
 
 The title had passed as between the parties to the deed. The 
 trustee had the right to the immediate possession. We do not see 
 why he was not as well "able to turn it out, to be disposed of on exe- 
 cution," {Andrews v. Ludlow, 5 Pick. 28, 31) as if he had taken 
 possession by a formal act. The case of Viall v. Bliss, 9 Pick. 13, 
 seems probably to have been similar to this, and in Maine it seems 
 settled that in cases like the present the trustee is to be charged. ' 
 Lane v. Nowell, 15 Maine, 86. Arnold v. Ehvell, 13 Maine, 261. 
 Peabody v. Maguire, 79 Maine, 572, 584. Glenn v. Boston & 
 Sandwich Glass Co. 7 Md. 287. See also Mechanics' Savings 
 Bank V. Waite, 150 Mass. 234, 235; Gushing, Trustee Process, §§ 
 53-55; Drake Attachment, (7th ed.) § 482; Freeman, Executions, 
 (2d ed.) § 160. Section 29 of Pub. Sts. c. 183, is not intended to 
 limit the liability of trustees under deeds like this to cases where 
 they have taken possession, but simply to declare the existing law ■ 
 that they may be charged by trustee processunder § 21. Rev. Sts. 
 c. 109, § 35, Commissioners' note. We are of opinion that the 
 property was "intrusted in the hands" of the trustee writhin Pub. 
 Sts. c. 183, § 21. 
 
200 WHAT MAY BE TAKEN. 
 
 It is suggested that it does not appear from the trustee's ans- 
 wers to interrogatories that all the defendants had executed the 
 deed before service of the writ. It does not appear that they had 
 not. The deed was executed, and, if it be material, may be pre- 
 sumed to have been executed by all three of the defendants on the 
 day of its date, as it certainly was by two of them. 
 
 Exceptions overruled. 
 The early Massachusetts cases are in accord with Gutterson v. 
 Morse, ante. See opinion by Shaw, C. J., in Osborne v. Jordan, 3 Gray 
 277. Avery v. Monroe is the strongest case reported. There are sev- 
 eral late cases tending in the same direction. But Gutterson v. Morse 
 is believed to announce the rule which would be followed in most 
 states. See collection of all the principal cases in a review of Avery 
 V. Monroe in American Law Review May-June, 1899; Rood Garnish. § 
 52. 
 
 e. MORTGAGED PROPERTY, FOR THE MORTGAGOR'S INTEREST. 
 
 SMITH v. MENOMINEE CIRCUIT JUDGE. 
 S3 Michigan 560, 19 N. W. 184. (1884) 
 
 Garnishment of Mortgagee — Mortgagee's Right to Retain Possession — 
 
 Officer's Rights and Duties — Manner of Sale — 
 
 Application of Proceeds. 
 
 Mandamus by James D. Smith and another, against C. B. 
 Grant, circuit judge. Granted. 
 
 B. J. Brown, for relators. 
 
 M. V. & R. A. Montgomery, for respondent. 
 
 The Court by Cooley, C.J. On February 7, 1883, one Can- 
 terbury brought suit in the circuit court for the county of Meno- 
 minee against one McClintock, and garnished the relators as hav- 
 ing in their hands property of McClintock. Judgment was re- 
 covered in the principal suit, and the garnishees disclosed that 
 they were in possession of certain goods and chattels of the esti- 
 mated value of $6,000, as mortgagees of McClintock, under a 
 mortgage given to secure the payment of $4775, all of which was 
 due and unpaid. The garnishment suit appears to have been 
 brought to trial before a jury, who returned a verdict that the gar- 
 nishees had property of McClintock in their hands which was of 
 the value of $7,000, and had a lien upon it to the amount of 
 $4,772.69. Thereupon the circuit court made an order * * * 
 
- UNDER GARNISHMENT. 201 
 
 [appointing a receiver of the property, directing the garnishees 
 to surrender it to him, and directing him to sell the same at pub- 
 lic auction and apply the proceeds, ( i ) to paying the costs of the 
 sale, etc., (2) to the payment of the garnishees' mortgage, and 
 (3) to return the balance into court to apply on the judgment of 
 the garnishing creditor] . . 
 
 The garnishees complain of this order, and apply in this pro- 
 ceeding for a writ of mandamus to require its vacation. Several 
 objections are made to it, but only those will be noticed which ap- 
 pear to us to require examination for the purposes of a decision 
 of the case now before us. 
 
 The statute (How. Stat. § 8064) contemplates that the court, 
 when it shall appear that the garnishee has in his possession [562] 
 property belonging to the principal defendant, will appoint a com- 
 missioner or receiver to collect and apply the proceeds upon any 
 execution in favor of the plaintiff and against the garnishee. * * * 
 
 We have grave doubts of the right to take from a mortgagee 
 of chattels the property upon which he has a lien, except where, 
 for the protection of the rights of others, the necessity shall be 
 apparent. It is a serious interference with his contract rights. 
 It is a part of his security that the mortgage gives him authority 
 to take the property into his own possession ; and nothing which 
 may subsequently be done by or against the mortgagor can right- 
 fully diminish or affect this security. When a resort to legal 
 remedies becomes [5(5j] essential, all parties concerned may be 
 required to submit to some inconvenience, and perhaps to some 
 loss ; but in a case where, as in this case, the legal remedy is only 
 sought for the purpose of reaching a surplus after a lien is satis- 
 fied, and the lienholder is not concerned in the controversy, it can- 
 not be rightful to make the burden or the cost of the litigation fall 
 upon him, or to take from him substantial rights for the conve- 
 nience of the parties litigant. 
 
 In this case the plaintiff, after obtaining his judgment, might 
 have sold on execution the interest of the mortgagor in the goods 
 and chattels mortgaged (How. Stat. § 7682) ; and for the pur- 
 poses of a levy might have taken possession temporarily. Cary 
 V. Hewitt, 26 Mich. 228; Macomber v. Saxton, 28 Mich. 516; 
 
202 WHAT MAY BE TAKEN. 
 
 Nelson v. Ferris, 30 Mich. 497 ; Haynes v. Leppig, 40 Mich. 602. 
 But the levy must be subordinate to the right of the mortgagee 
 ( Worthington v. Hanna, 23 Mich. 530) ; and a sale, if made with- 
 out first paying off the mortgage, must be made of the goods in 
 gross, subject to the mortgagee's lien. Worthington v. Hanna, 
 supra; King v. Hubbell, 42 Mich^ 597 ; Haynes v. Leppig, 40 
 Mich. 602 ; Baldwin v. Talbot, 46 Mich. 19 ; Laing v. Perrott, 48 
 Mich. 298. It is not apparent on this record that an execution 
 would not have accomplished the purposes of effectual remedy 
 quite as effectually as the appointment of a receiver ; but if for any 
 reason a receiver was deemed necessary, he could not properly be 
 given greater powers than a sheriff would have had if execution 
 had been placed in his hands. It would have been proper to em- 
 power him to examine the property and inventory it, for the pur- 
 poses of an intelligent sale ; but a sale must be made by him of the 
 property in gross subject to the mortgage, and all his proceedings 
 must be at the expense, not of the mortgagees, but of the fund that 
 might be realized on the sale. 
 
 The order complained of should therefore be modified so far 
 as it authorizes the receiver to displace the possession of the mort- 
 gagees, and so far as it authorizes the receiver to sell the mort- 
 gaged property without regard to the mortgage lien, and to pay 
 the mortgagees from the proceeds after deducting [564] expenses. 
 The statute only contemplates a sale when a greater sum than the 
 amount of the lien can be realized ; and this is inconsistent with 
 a sale in parcels, the outconie of which cannot be known when it 
 is begun. And it is unjust, even if the statute would permit it, 
 that the mortgagees should be subjected to the risks of a sale of 
 all the property to be made by a receiver at the expense of the 
 fund, in a suit which concerns only other parties, when under 
 their security they have a right to make sale themselves. 
 
 The order complained of does not require the receiver to give 
 security. Probably this was an inadvertence. It should be cor- 
 rected. 
 
 An order will be entered in accordance with these views. 
 
UNDER GARNISHMENT. 20S 
 
 /. FRACTIONAL INTERESTS OF TENANTS IN COMMON, PART- 
 NERS, ETC. ' 
 
 MOORE V. GILMORE. 
 i6 Washington 123, 47 Pac. 239. (1896) 
 
 Garnishment of Persons Indebted to Defendant and Others — Power to 
 
 Split the Demand — Bringing in Claimants, Necessity 
 
 of, Whose Right or Duty. 
 
 Garnishment. From judgment discharging the garnishees 
 plaintiffs appeal. Affirmed. 
 
 'Boyer & Giiie, and Greene, Turner & Lewis, for appellants. 
 
 Ira Branson, for respondents. 
 
 The Court by Scott, J. The plaintiffs brought suit upon a 
 promissory note and obtained judgment against the defendant 
 Gilmore. While the action was pending, and a few days prior to 
 the rendition of the judgment, they caused a writ of garnishment 
 to be issued and served on the other parties respondent. The gar- 
 nishees appeared and answered, but did not disclose any liability 
 to the principal defendant. Plaintiffs controverted the answers, 
 and, a jury being waived, the issue came on for trial before the 
 court. The facts showed that some of the garnishees were in- 
 debted to Gilmore and one Kirkman as joint claimants ; that Kirk- 
 man was dead; [124] that after his death Gilmore and Kirkman's 
 executors brought suit on said claim against said garnishees and 
 obtained judgment; that thereafter the plaintiffs brought suit on a 
 bond given, in said action last hereinbefore mentioned, to the 
 plaintiffs, by all of the garnishees, and obtained a judgment 
 against all of them ; and that none of the judgments had been paid. 
 On these facts the court discharged the garnishees, and the plain- 
 tiffs have appealed. 
 
 The question is presented whether, upon a claim against one 
 party, garnishees can be held upon a debt owed such party and 
 another person jointly. The authorities are in conflict upon this 
 point. A number of cases have been cited by the appellants, hold- 
 ing that a joint claim may be reached for the individual debt of 
 one of the joint claimants, and some of the text-books are to that 
 effect. Whitney v. Munroe, 19 Me. 42, 36 Am. Dec. 732; 
 Thorndike v. De Wolf, 23 Mass. (6 Pick.) 120; Miller v. Rich- 
 
204 WHAT MAY BE TAKEN; 
 
 ardson, i Mo. 310; Fogleman v. Shively, 4. Ind. App. 197, 30 N. 
 E. 909 ; Perry v. Blatch, 2 Kan. App. 522, 43 Pac. 989 ; Drake, At- 
 tachments, §§ 566 to 572; 8 Am. & Eng. Ency; Law, p. 1169. 
 
 There are other cases and text-books, cited by the respond- 
 ents, holding to the contrary, and a number of cases have been 
 cited by both parties relating to the garnishment of debts du€ a 
 partnership on a claim against one of the partners. A distinc- 
 tion is drawn in the authorities between debts due joint claimants 
 and those due to a partnership, and in some states where it is held 
 that joint claims may be reached upon a debt against one joint 
 claimant, it is held that the interest of a single partner in a part- 
 nership claim cannot be so reached. The reasons for this usually 
 1 given are that a partner has no separable interest in any specific 
 partnership property, and that such property [12^] is first liable 
 for partnership debts, and to such claims as may be due the other 
 partners owing by the partner proceeded against, and that the 
 eflfect of this is to so involve the proceedings as to render the rem- 
 edy impracticable of enforcement. If there were no such debts, 
 however, it would seem that this reason ought not to prevail, but 
 with that question we have not to deal in this case. 
 
 We shall not undertake to review the authorities cited in de- 
 tail, but we have examined them and are of the opinion that the 
 I better sustained rule is that a joint claim may be reached by gar- 
 \ nishment to the extent of one of the claimant's interests therein to 
 \\satisfy his individual debt. The reasons given in those cases 
 holding that a joint debt may not be so reached are not always 
 satisfactory or tenable. A very general one given is that the gar- 
 nishing creditor can have no greater rights or privileges than the 
 principal defendant or primary creditor of the garnishee. An- 
 other one is that the demand cannot be severed and thus subject 
 the garnishee to the liability of several suits. Also, that the other 
 joint claimant is an interested party and entitled to half the moneys 
 collected. 
 
 Aside from the question that the garnishing creditor may al- 
 ways inquire into fraudulent transactions between the principal 
 defendant and the garnishee for the purpose of placing such de- 
 fendant's property beyond the reach of his creditors, the law is 
 
UNDER GARNISHMENT. 205 
 
 well settled that a single claim against one pi^fty, ipajfybjC severed 
 to the extent of taking only sufficient of it to satisfy the demands 
 of the garnishing creditor. The fact that the garnishee may be 
 authorized to pay the whole demand to the officer, or to turn over 
 the whole property to him, as the case may be, can have no bear- 
 ing on this, for it might not always be allowable, at his option, 
 [126] as in a case where he should be under two garnishments 
 from different courts, to recover different claims against the prin- 
 cipal defendant. If the law will thus sever a single demand owing 
 by the garnishee to the principal defendant solely, it would seem 
 that the only reason for holding that the garnishee cannot be held 
 to answer for the debt of one, where he owes two or more jointly, 
 would be in consequence of a failure in the law to provide for the 
 protection of the interests of the other joint claimants and the gar- 
 nishee as against them ; and, if such protection is given, the diffi- 
 culty is obviated. 
 
 As the right of garnishment is a statutory one, it isi probable 
 that the conflict in the authorities is due in a measure to a differ- 
 ence in the statutory provisions of the several states upon the sub- 
 ject of garnishment. The tendency of legislation, in this state 
 at least, has been to extend rather than curtail the right. The 
 general purpose of the law is to subject all property of the debtor, 
 over and above his exemptions, to the payment of. his debts. 
 Where the right of garnishment is given it would seem that the 
 question as to whether it would be available in a particular case 
 would be dependent upon two matters : these are, that the remedy 
 should be capable of enforcement, and a due protection given to 
 the rights of third parties who thus become unwillingly involved 
 in such controversies between a creditor and his debtor. It may 
 be said that the law must award such parties, who may well be 
 styled "innocent parties," ample protection, where they are called 
 upon to respond to some other person than their own contract 
 creditor, as in the case of garnishment. Such questions, of course, 
 must be largely determined by the statutes of the particular state 
 upon the subject ;of garnishment, and the question arises, [12^] 
 what are the statutory provisions of this state relating to these 
 matters ? * * * It will be seen that- the remedy here is a favored. 
 
206 WHAT MAY BE TAKEN. 
 
 broad and comprehensive one, and § 322 of the code requires that 
 it shall be liberally construed in furtherance of its objects. 
 
 There can be no question as to the practicability of the rem- 
 edy as applied to the facts of this case, and it would seem, there- 
 fore, that the only question is, does the law afford sufficient pro- 
 tection to the rights of these garnishees and the other joint claim- 
 ants? If so, a reasonable construction to effect its evident pur- 
 poses, would require us to hold that a jpint debt may be reached 
 to satisfy a demand against one of the joint claimants. But we 
 are of the opinion that the other joint claimants must be held to 
 be interested parties in a proceeding like this, as the relations be- 
 tween the [128] joint claimants and the garnishee will be so ma- 
 terially changed by virtue of the proceeding. It is clear that the 
 garnishing creditor can only enforce collection of the interest of 
 his debtor in the joint claim, and then only to the extent of satis- 
 fying his own claim, and a balance might be left due such debtor 
 from the joint debtor, though less, to the amount of that recov- 
 ered, than that due to the other joint claimant. It is evident that 
 such a change in the relations of the parties should not be made 
 without giving the other joint creditor an opportunity to partici- 
 pate in the proceedings and insist upon the payment of the whole 
 claim, and upon his right at that time to his share of the moneys 
 collected. We have no doubt that the joint claimants and their 
 debtor might make any agreement between themselves that was 
 satisfactory to them, as relating to the payment of the balance of 
 the claim after the demands of the garnishing creditor are sat- 
 isfied ; but, for the protection of all parties, the other joint claim- 
 ants should be brought in, or at least given an opportunity to come 
 into the proceeding to protect their rights, and also to the end that 
 they should be thereby concluded as against the garnishee to the 
 extent of the amount recovered of him. 
 
 From the decisions, it looks as though in some instances un- 
 necessary hardships are placed upon a garnishee in such a pro- 
 ceeding, where he has no direct interest as between the parties, in 
 requiring him to act at his peril to see that the garnishment 
 proceeding is properly instituted and a valid judgment rendered 
 against him, or that otherwise a payment thereunder would be no 
 
UNDER GARNISHMENT. 207 
 
 protection to him in an action by the debtor in the principal action. 
 This could be obviated itl all cases by making such principal 
 defendant a party to the garnishment proceedings, where he is 
 [i2p] not one, so that the whole matter could be determined and 
 the rights of all parties concluded and the garnishee thus effectu- 
 ally protected. 
 
 Section 150, Code Proc, provides that the court may deter- 
 mine any controversy between parties before it when it can be 
 done without prejudice to'the rights of others, or by saving their 
 rights. But when a complete determination cannot be had with- 
 out the presence of other parties, the court shall cause them to be 
 brought in. This statute 'not only gave the right or power to 
 bring in the other joint claimants in this instance, but, in our 
 opinion, it should be held as making it obligatory, as such seems to 
 be the intent of the provision. It is true that, in Marx v. Parker, 
 9 Wash. 473, 43 Am. St. 849, 37 Pac. 675, we said that the court 
 could not, upon its own motion, require a third party to intervene 
 in a garnishment proceeding ; but this wodld not prevent the court 
 from requiring a third party to appear upon the application of 
 either of the parties in court. While the method of bringing such 
 third party into court is not clearly pointed out, it seems to us to 
 be clearly authorized in some manner by this section, and also by 
 § 49, which provides that where jurisdiction is given, all means to 
 carry the proceeding into effect are also given ; and if the course 
 of proceeding is not specifically pointed out by statute, any suitable 
 process or proceedings may be adopted which may appear most 
 conformable to the spirit of the code. This statute was clearly 
 intended for a purpose, and that purpose is apparent. It would 
 apply to a case of this kind, in the absence of any special provision, 
 and it must be held in force, it seems to us, and to cover such a 
 case as this ; or it must be held that its provisions are so general as 
 to be [130] wholly inoperative, and we can see no reason for so 
 holding and thus depriving it of any effect. Provision is also 
 made whereby the other joint claimant could intervene upon his 
 own motion, or, in case there was a dispute as to the fund, pro- 
 vision is made for the payment of the same into court by the gar- 
 nishee. Code Proc, §§ 152 to 156, ' 
 
208 WHAT MAY BE TAKEN. 
 
 Now, while either of the parties could have applied to the 
 court to have the other joint claimants brought into the proceed- 
 ings, it seems to us that the obligation rested upon the plaintiflfs, 
 as they were the moving parties. They might have done this in 
 the first instance, if they knew the facts, by applying to the court 
 for an order and having suitable process or notice served upon .the 
 other joint claimants requiring them to appear ip the proceeding 
 and ask for such relief as they were entitled to ; or, in consequepce 
 of a failure to do so, to be concluded by the judgment thereafter 
 rendered ; or they might have done so afterwards, when the nature 
 of the indebtedness was disclosed. While the defendants in the 
 garnishment proceeding had this privilege, it was not incumbent 
 on them to exercise it, and as the plaintiffs did not ask to have the 
 matter put in shape so the court could protect the interests of all 
 parties, there was no error in dismissing the proceedings, and for 
 that reason 
 
 The judgment is affirmed. 
 
 g. CHOSES IN ACTION AND INDICIA OF TITLE. 
 
 OLD SECOND NATIONAL BANK v. WILLIAMS. 
 112 Michigan 564, 71 N. W. 150. (1897) 
 
 Garnishment — Liability of Garnisliee for Corporate Stock Held in 
 
 Pledge — When Garnishee's Liability Becomes Fixed, 
 
 Effect of Subsequent Acts. 
 
 Garnishment proceedings by the Old Second National Bank 
 of Bay City against Charles S. Williams, as garnishee of David 
 M. Estey and James H. Calkins. From a judgment for plaintiff, 
 defendant brings error. Affirmed. 
 
 William M. Kilpatrick {Cahill & Ostrander, of counsel), for 
 appellant. 
 
 C. L. Collins, for appellee. 
 
 The Court by Long, C.J. December 21, 1895, the plaintiff 
 commenced suit in the Bay circuit court against David M. Estey 
 and James H. Calkins, partners under the name of [5(55] Estey 
 & Calkins, and on the same date sued otit a writ of garnishment 
 against defendant Williams ; alleging in the affidavit upon which 
 the writ was issued that "Charles S. Williams, of Owosso, Mich., 
 has property, money, goods, chattels, and' effects in his hands and 
 
UNDER GARNISHMENT. 209 
 
 under his control belonging to the said David M. Estey and James 
 H. Calkins, and each of them, and is indebted to them, and each 
 of them." Mr. Williams made disclosure in the case under oath, 
 in which he stated that he was not indebted to the principal de- 
 fendants, or either of them, and was not at the time of the service 
 of the writ upon him, but that at the time of the service of the writ 
 he then held loo shares of the capital stock of the Estey Manufac- 
 turing Company, of Owosso, Mich., represented by certificate No. 
 68, of the par value of $25 each, which had been duly assigned to 
 him by David M. Estey, "and which he now holds as collateral 
 security for the indorsement and guaranty by him, the said 
 Charles S. Williams, of a certain promissory note made by David 
 M. Estey on December 5, 1895, to C. J. Monroe, for the sum of 
 $2,500, payable four months from date, with interest at 7 per cent., 
 but by whom the said note is now held he is unable to say," and 
 that he has no other property, credits, or effects of said Estey & 
 Calkins. On the trial the plaintiff offered in evidence the judg- 
 ment in the principal case against Estey & Calkins. This was ob- 
 jected to by counsel for the garnishee defendant for the reason 
 that the judgment was obtained at a former term of court, and 
 under the statute the garnishee suit should have been brought on 
 for trial at that term. It was also objected that the stock of a 
 corporation is not subject to garnishee process. These objections 
 were overruled. It appeared that the judgment in the principal 
 suit was for $2,617.35, that the garnishee defendant had advertised 
 and sold said stock for the sum of $3,250, and that the note upon 
 which he was held as indorser was paid in full out of moneys aris- 
 ing from the sale of the stock, leaving a surplus in his hands of 
 $669.41, For this [566] amount the court below entered, a judg- 
 ment in favor of the plaintiff, less the expense of the sale of the 
 stock and the garnishee's witness and attorney fees, which were 
 fixed at $35. * * * 
 
 Counsel for defendant argue that while the shares 
 of stock may be reached by attachment and execution [567] 
 under 2 How. Stat. § 7697 etseq., and § 7993, yet there is no stat- 
 ute which provides for reaching such surplus by writ of garnish- ' 
 ment ; that art common law there was only one way to reach the 
 
210 WHAT MAY BE TAKEN. 
 
 interest of a shareholder in a corporation, and that was in equity, 
 the interest being an intangible one, not subject to levy by execu- 
 tion ; that, proceedings in garnishment being statutory, the rule 
 that they cannot be extended to include any case not provided by 
 the statute is one of necessity; that there is no process of court 
 provided by the statute by which the surplus itself can be made 
 available to the plaintiff, as the court has no power to order a sale 
 in such a proceeding; that the fact that the garnishee defendant, 
 after being served with the writ, sold the shares, and had the pro- 
 ceeds in his hands in money, did not enlarge the plaintiff's rights ; 
 that the right to hold the garnishee depends upon the state of the 
 claim, as one garnishable or not, at the time of the serving of the 
 process. 
 
 The last proposition is well settled in this state. Marts v. 
 Insurance Co., 28 Mich. 201 ; Hopson v. Dinan, 48 Mich. 612 ; 
 Bethel v. Judge of Superior Court, 57 Mich. 379. The question 
 is therefore presented, as contended by counsel for defendant, 
 whether this certificate of stock in the hands of the garnishee was 
 subject to garnishment. While we find no statute in this state 
 which expressly provides that stock in a corporation may be the 
 subject of garnishment, yet § 7697, 2 How. Stat., provides that 
 such stock may be taken and sold on execution ; and the rule seems 
 -to be settled by the weight of authority, and in reason, that, where 
 stock may be taken and sold on execution, the garnishee may be 
 charged for choses in action in his possession. It is the rule of 
 the common law that no such stock can be taken in execution, but 
 the statutes of most of the states now provide for such levy and 
 sale. The reason given in many of the cases cited by counsel for 
 garnishee why such stock is not subject to garnishment is that the 
 judgment needed is one authorizing a sale of the stock, and there 
 is no law making bank [5<5§] and other stock subject to execu- 
 tion. Our statute provides for such levy and sale. Sections 
 8058, 8059, 2 How. Stat., provide for charging the garnishee de- 
 fendant with the property, money, goods, chattels, and effects in 
 his hands, etc. Section 8065 reaches any personal property, etc., 
 subject to any pledge, lien, or mortgage. Under these statutes; 
 we think the stock was subject to garnishment. It was personal 
 
UNDER GARNISHMENT. 211 
 
 property which might be taken in execution, and, within the gar- 
 nishee statute, was personal property subject to that claim. This 
 was the rule laid down by the supreme court of Minnesota in 
 Puget Sound Nat. Bank v. Mather, 60 Minn. 362, and in Edwards 
 V. Beugnot, 7-Cal. 162. Shares of stock in corporations are 
 bought and sold in the markets of the world as personal property. 
 The shares in controversy were treated as personal property, 
 pledged as such, and sold under the pledge. The garnishee stat- 
 ute, while not expressly providing for the holding of this particu- 
 lar personal property under garnishment process, yet does hold 
 personal property and certain choses in action. The maker' of a 
 promissory note may be garnished after its maturity, if it is then 
 owned by the principal defendant. Somers v. Losey, 48 Mich. 
 294. The statute in Minnesota is very similar to our own, and 
 in Banning v. Sibley, 3 Minn. 389, 405, it was held that shares in 
 a railroad company were liable to be taken on garnishee process. 
 The court said : "There being nothing in the nature of the prop- 
 erty itself which exempts it from process of execution or attach- 
 ment, no valid reason can be given why it should not be reached 
 by this process, which is, in effect, but another form of attachment, 
 and intended to reach a class of cases in which the ordinary writ 
 is of no avail." See, also. Storm v. Cotzhausen, 38 Wis. 139; La 
 Crosse Nat. Bank v. Wilson, 74 Wis. 391. 
 
 The judgment must be affirmed. 
 
 In several states it has been held that corporate stocks could not 
 be attached by garnishment in the absence of a statute expressly ex- 
 tending the process to such cases and that the method prescribed by 
 the statute for levying upon such shares must be strictly pursued. 
 Mcar V. Walker, 46 Iowa 164; O. L. Packard M. Co. v. Laev, 100 Wis. 
 644. An assignee of stock has also been held to acquire good title, 
 though the holder of the certificate had previously been summoned as 
 garnishee. Younkin v. Collier, 47 Fed. Rep. 571. 
 
212 WHAT MAY BE TAKEN. 
 
 h. PROPERTY IN GREMIO LEGIS. 
 
 HOLKER V. HENNESSEY. 
 
 141 Missouri 527, 64 Am. St. 524, 42 S- W. 1090. (1897) 
 
 Garnishment — Right of Officer IVIal<ing Arrest to Search Prisoner — Levy 
 
 Accomplished by Fraud or Abuse of Process, Effect — 
 
 Porperty in Custodia Legis, Liability to Process. 
 
 Garnishment against B. F. Pixler, sheriff of Nodaway county, 
 in an action by Holker against Hennessey and Green to recover 
 $5,000, of which Holker claims to have been robbed by them. The 
 garnishee was discharged and plaintiff appeals. Affirmed. The 
 sheriff took two revolvers and several hundred dollars from the 
 defendants when he arrested them in Nebraska on a criminal 
 prosecution for grand larceny. 
 
 Frank GriiEn and W. W. Ramsay, for appellant. 
 
 E. A. Vinsonhaler, for respondent. 
 
 The Court hy Macfarlane, J. * * * The only question 
 raised by this record is whether or not this money taken from the 
 person of these prisoners when arrested, and still held by garnishee 
 ofScially as sheriff, is subject to garnishment, in an attachment 
 suit in favor of plaintiff and against defendants, the subject of the 
 suit being damages on account of the alleged crime. 
 
 It has been held in this State, and is generally recognized as 
 the law, that in a civil action, service of a process upon a defendant 
 who is brought into the territorial jurisdiction of the court by 
 fraudulent means or criminal process, will be set aside if timely 
 objection is made thereto. Byler v. Jones, 79 Mo. 261 ; Christian 
 V. Williams, 1 1 1 Mo. 435, and cases cited. So it is held that "where 
 an officer unlawfully gets possession of a debtor's property, as by 
 1 breaking into his dwelling house without proper authority, and 
 1 then attaches it on mesne process or levies upon it on execution, 
 '*the attachment or levy will be void." Closson v. Morrison, 47 N. 
 H. 485; citing, Ilsley v. Nichols, 29 Mass. (12 Pick.) 270; People 
 V. Hub.bard, 24 Wend. (N. Y.) 369; Curtis v. Hubbard, 4 Hill 
 (N.Y.) 437, and other cases. This seems to be the modern doctrine 
 founded upon the principle that courts will not lend their assist- 
 ance to effectuate fraudulent or unlawful practices of suitors, 
 though the old doctrine was that the seizure under process in such 
 
UNDER GARNISHMENT. 213 
 
 case would be valid, while the officer making it would [337] be 
 Uable for the trespass. See People v. Hubbard, supra. 
 
 In the case of Closson v. Morrison, supra, the sheriff arrested 
 a person tinder a charge of grand larceny and before trial or ex- 
 amination, proceeded, on his own motion, to search the prisoner, 
 and took from his person some money, a watch, watch chain and 
 wallet. On the next day writs of attachment were issued against 
 the prisoner and placed in the hands of the sheriff, and he there- 
 upon attached the money and other property. The court, in giving 
 its judgment, says: "The money and other articles were proper 
 articles to attach, if the officer could rightfully obtain possession of 
 them, without arresting the debtor, which the writ did not warrant 
 him in doing. Now, if the officer took advantage of his warrant 
 and the arrest under it, to take from his prisoner this property, not 
 for any legitimate purpose, but simply for the purpose of attaching 
 it on these writs, that would be obtaining possession of the property 
 under false pretenses and fraudulently, which would make the pos- 
 session to stand like the unlawful possession in case of breaking 
 into the house in the other case, and would not justify the attach- 
 ment." The court held that if this property was lawfully 
 taken from the person of the debtor, it was subject to attachment 
 while in the hands of the sheriff. 
 
 The same ruling was made by the Supreme Court of Iowa in 
 the case of Reifsnyder v. Lee, 44 Iowa, 102. Beck, J., in deliver- 
 ing the opinion, says : "A party to a suit can gain nothing by 
 fraud or violence under the pretense of process, nor will the 
 fraudulent or unlawful use of process be sanctioned by the courts, 
 In such cases, parties will be restored to the rights and position 
 they possessed and occupied before they were deprived thereof by 
 the fraud, violence, or abuse of Y538] legal process." Money and ' 
 a watch had also been taken from the person of the prisoner in that 
 case^ and the court held that the officer was authorized to make the 
 search and take into his possession such property, and the levy of 
 the attachment upon it while so held was valid. In a subsequent 
 case, however, the same court held that where the sheriff took f roirj 
 the person of a prisoner two watches. and some money, which were 
 in no way connected with the crime with which he was charged. 
 
214 WHAT MAY BE TAKEN. 
 
 and which conld not be used as evidence in the prosecution, it was 
 his duty to return them, and while he retained them his possession 
 was that of the prisoner, and they were "no more hable to attach- 
 ment in an action against the prisoner than if they had been in his 
 pocket." The court says: "To hold otherwise would lead to 
 unlawful and forcible searches of person under cover of criminal 
 process as an aid to civil actions for the collection of debts." Bank 
 V. McLeod, 65 Iowa, 666. 
 
 We find the same ruling by the Supreme Judicial Court of 
 Massachusetts, in the cases of Robinson v Howard, 7 Cush. 257, 
 and Morris v. Penniman, 14 Gray, 220. In the former case * * * 
 Shaw, C. J., says : "Such process might be used to search the per- 
 son, or otherwise, under color of lawful authority, to get posses- 
 sion of the property of a debtor, in order to place it in the hands of 
 the officer, and thus make it attachable under trustee process." In 
 the latter case one Bassett was arrested on a charge of larceny. On 
 being asked what property he had about him, he delivered up, 
 without objection, a watch and key. While [53p] they were in 
 possession of the officer they were attached on process against Bas- 
 sett. On this state of facts the court held that "the attachment of 
 the watch and key was not valid." 
 
 A sheriff in Texas took from the person of a prisoner $950 in 
 money, and other property. While in his possession the officer 
 was served with process by garnishment. Knox, the -prisoner, 
 intervened and claimed that the property in the hands of the sheriff 
 was in the custody of the law and was not subject to garnishment 
 at the suit of a creditor. On appeal this plea was sustained on the 
 ground that the property was not subject to process by garnish- 
 ment. Richardson v. Anderson, 4 Tex App. Civ. Cas. 493, 18 
 S. W. 195. 
 
 The Supreme Court of Alabama reaches a different conclusion 
 under a provision of the code of that State. The court, however, 
 in discussing the question, says : "At common law, and perhaps 
 without statute, the money or property" taken from the person of 
 the prisoner, "would be in gremio legis, not subject to attachment, 
 and entirely under the control of the court." Ex parte Hum, 92 
 Ala. 109. * * * [540] 
 
UNDER GARNISHMENT. 2l5 
 
 We find no statute of this State giving the arresting officer 
 authority to search a prisoner, but no statute is necessary. The 
 .power exists from the nature and objects of the public duty the 
 officer isrequired to perform. * * * 
 
 We have no doubt the search of the prisoners in this case was 
 entirely justifiable, considering the nature of the crime charged 
 and other circumstances. In the circumstances, also, he was jus- 
 tified in taking from their persons and keeping in his possession 
 the money found upon them, though it may have been in no man- 
 ner connected with the charge or proof against them. Money is 
 the most effective kind of. property a prisoner could have in his 
 possession to be used 'as a means of escape. * * * [541] * * * 
 
 The sheriff being an officer of the court in which the indict-V 
 ment is pending, the money is in custody of the court subject to its ' 
 order. The rule of general application is that money or property 
 which has come into the hands of an officer of a court by virtue of 
 legal process is regarded as in the custody of the law and can not 
 be taken from him under other process, either of execution,attach- 
 ment, or garnishment. Shinn on Attachment, § 505 ; 2 Wade on 
 Attachment, §§ 330, 421 ; Kneel on Attachment, § 410; Waples on 
 Attachment, § 390; 8 Am. and Eng. Ency. of Law, 1137. * * * 
 
 [543] * * * 
 
 It is therefore our opinion that if the money and property were 
 taken from the persons of the prisoners by authority of law, which 
 the sheriff would be estopped to deny, it was in the custody of the 
 law and subject to the orders of the court in which the criminal 
 proceedings were pending, and was not, at least until after convic- 
 tion, subject to attachment at a suit of a creditor of the prisoner. 
 If, on the other hand, it was taken without authority of law, then 
 it is not subject to attachment because a wrongful use was made 
 of criminal process in getting possession. * * * 
 
 Affirmed. 
 Under similar facts the supreme court of Michigaai, in a recent 
 case, reversed a judgment against a garnishee saying; "It is true that 
 there was no collusion shown in this case, but, in all cases it might be 
 difficult to show actual collusion, and we think the safe rule is that 
 which excludes the possibility." Hubbard v. Garner, 115 Mich. 40'!, 
 73 N. W. 390. 
 
216 WHAT MAY BE TAKEN. 
 
 HUDSON V. SAGINAW CIRCUIT JUDGE. 
 
 114 Michigan 116, 72 N. W. 162. (1897) 
 
 Garnishment Against Officers of Courts— Liability of Property in Thefr 
 
 Possession to Process — Limitation of Exemption — 
 
 Power of Court to Waive Exemption. 
 
 Mandamus by Joseph L. Hudson, receiver of the Third 
 National Bank of Detroit, to compel Eugene Wilber, circuit judge 
 of Saginaw county, to vacate an order quashing a writ of garnish- 
 ment issued against Charles B. Gray and Edward Y. Swift, execu- 
 tors of the last will and testament of Aaron C. Fisher, deceased, as 
 garnishee defendants of John E. Nolan. 
 
 De Forest Paine, for relator. 
 
 William G. Gage, for respondent. 
 
 IJooker, J. Nolan brought an action against Aaron 
 C. Fisher in his lifetime, which culminated in a judgment 
 against his executors, the same being affirmed by this court in 1 1 1 
 Mich. 56. Thereupon the relator garnished the executors, but the 
 circuit court dismissed the proceedings, after disclosure, upon the 
 ground that garnishment would not lie against executors. 
 
 It is a general rule that property in custody of the law is not 
 subject to attachment or garnishment. The law [117] does not 
 permit one court to assume control over the representative of an- 
 other court, or the property confided to his charge. By this it is 
 not meant that personal remedies against the individual may not be 
 sought, but that any proceeding in the nature of an action in rem, 
 whereby it is sought to reach the property which another court has 
 taken possession of , is forbidden. Thus replevin from an officer 
 holding under order of the court of chancery is punishable as a 
 contempt. Even suits against a receiver in his representative 
 capacity are forbidden, though the court appointing the receiver 
 may, on cause shown, permit them. The probate court has not 
 even this power respecting its officers, who can only be sued in the 
 manner pointed out by statute, and a garnishee proceeding is not 
 included among statutory proceedings against executors and ad- 
 ministrators in Michigan, though it is in some states. 
 
 That administrators and executors are exempt from this pro- 
 cess is the general rule. In Rood, Garnishm., § 27, it is said: 
 
UNDER GARNISHMENT. 217 
 
 " 'When property or money is in custodia legis, the officer holding 
 it is t!ie mere hand of the court. His possessioii is the possession 
 of the court. To interfere with his possession is to invade the 
 jurisdiction of the court itself. And an officer so situated is bound 
 by the orders and judgments of the court, whose mere agent he is, 
 and he can make no disposition of it without the consent of his own 
 court, express or implied.' In re Cunningham-, 9 Cent. L. J 208. 
 These principles have been applied in numerous cases to various 
 classes of legal custodians, and in accordance with them it has been 
 held that clerks of courts, trial justices, registers in chancery, mas- 
 ters in chancery, receivers,, trustees appointed by a cornet of chan- 
 cery, assignees in bankruptcy, trustees for creditors under a gen- 
 eral assignment pursuaiit to insolvent laws, other trustees appointed 
 to dispose of property and apply the avails according to the orders 
 of the court, sheriffs, constables, and other ministerial officers, and 
 their bailees and assistants, justices of the peace, executors, admin- 
 istrators, and guardians, cannot be charged as garnishees by reason 
 of any property or mouey which they hold or any debts which they 
 owe merely as such officers." \.ii8] In his next section the 
 author says that : "In a few of the States, while these principles 
 are recognized as sound, they have been considered inapplicable to 
 certain of the cases above mentioned, either generally or in view of 
 the peculiar provisions of the statute governing the conduct of the 
 particular officer. Among these may be mentioned sheriffs and 
 constables, clerks in chancery courts, justices of the peace, admin- 
 istrators, and executors." 
 
 Among the cases cited by the author is Hardesty v. Campbell. 
 29 Md. 533, where the decision rests upon the Code. In the Ala- 
 bama cases the question is not raised, and, though the jurisdiction 
 over an administrator seems conceded, it rests upon a statute.which 
 is not quoted. Against the few states, the author cites to the con- 
 trary cases involving administrators, from Massachusetts, Maine, 
 Arkansas, West Virginia, Rliode Island, Delaware, Vermont, Indi- 
 ana, and Missouri, to say nothing of a cloud of analogous cases 
 relating to other officers. 
 
 Mr. Shinn, , in his treatise on Attachment and Garnishment 
 (§ 510) says: "In the absence of special statute, it was an undis- 
 
218 WHAT MAY BE TAKEN. 
 
 puted rule of law that an executor or administrator could not, in 
 his official capacity, be held liable as a garnishee at suit of a credi- 
 tor of the decedent or of one who was a legatee or distributee or 
 other creditor of the estate. He is not then considered to be a 
 'debtor.' Neither is he an agent, factor, attorney, or trustee of 
 such creditor, because he derives his authority from the law, and 
 is obliged to execute it according to law." * * * 
 
 He admits, however, that in many states this rule has been 
 changed by statute, and a long list of cases is given. It goes with- 
 out saying that decisions based upon a statutory right of garnish- 
 ment are not to be considered as authority for changing the gen- 
 eral rule, unless by analogy a similar construction should be in- 
 dulged. The author says of the administrator's liability, where 
 he may be garnished, that — 
 
 "In states permitting an executor or administrator to be made 
 a garnishee, he may be held as such whenever the person to whom 
 he is to pay the legacy or distributive share may maintain an action 
 at law against such executor or administrator. After a court has 
 decreed a distribution of the proceeds in the hands of the admin- 
 istrator, such administrator may be held as garnishee. Some stat- 
 utes permit an executor or administrator to be made a garnishee 
 during the pendency of the settlement of the estate, but no judg- 
 ment can be rendered against him until a settlement is made, un- 
 less he assent to the legacy or admits assets to pay the amount 
 claimed out of the distributive share. Until the distributive shares 
 are ascertained, they cannot be secured by garnishment. In other 
 words, when it is uncertain whether the administrator will have 
 a surplus in his hands or not, he cannot be held as garnishee." 
 i2 Shinn, Attachm. § 511, and cases cited. 
 
 In 8 Am. & Eng. Enc. Law, 11 39, a paragraph denying the lia- 
 bility concludes as follows, after citing Brooks v. Cook, 8 Mass. 
 246: "The court held that, as the administrator derived his au- 
 thority from the law, * * * he was not liable to process of this 
 kind, and such has been the almost uniform current of authority, 
 including cases as to executors as well." 
 
 The language of Mr. Rood, who is quoted in support of the 
 doctrine that "the great preponderance of modern authorities 
 
UNDER GARNISHMENT. 
 
 219 
 
 * * * holds that, when the purposes of the court have been fully 
 accomplished in respect to the particular funds, by a final decree 
 or order for payment of the same to the defendant by such officer, 
 or his becoming directly and absolutely accountable to the defend- 
 ant therefor without such order, such property or credit may be 
 reached by garnishing such officer" (Rood, Garnishm. § 32), if 
 approved, should not be applied to this case, for the probate court 
 is not shown to have made a decree or order for payment, nor have 
 the executors become directly and absolutely accountable to the 
 principal defendant. Such liability becomes fixed when distri- 
 bution is ordered under §§ 5925 to 5931 of 2 Howell's Annotated 
 Statutes. It does not rest in the authority of other [120] tribu- 
 nals to determine the status of a fund in the custody of the probate 
 court. 
 
 It is said that in Cohnen v. Sweenie, 105 Mich. 643, this court 
 held that a receiver might be garnished with permission of the 
 court that appointed him. The exercise of discretion by a court 
 of chancery having jurisdiction of the fund is a very different 
 thing from the power of other courts to determine what shall be 
 done with it. That case does not rule this. I am unable to see the 
 propriety of holding that the liability or non-liability of an execu- 
 tor becomes a question of fact, dependent upon the quantity of 
 assets and ability of the executor to pay, to be tried by jury or 
 otherwise in as many courts as there are garnishing creditors, to 
 the embarrassment of the settlement of estates, and the overthrow 
 of one of the best-settled rules of general application known to the 
 law. The writ is denied, with costs. 
 
 Montgomery and Moore, J J., concurred with Hooker, J. 
 
 Grant, J. {dissenting). * * * The executors filed a disclos- 
 ure, in which they admitted the judgment against them, and that 
 the money was in their hands ready to be paid to such persons as 
 were legally entitled to receive it. The court quashed the proceed- 
 ings on the ground that a suit of garnishment would not lie against 
 an executor or administrator. 
 
 The court granted the order, evidently relying upon White v. 
 Ledyard, 48 Mich. 264. That case differs in its facts from this, 
 in that the garnishee defendant died without making disclosure, 
 
220 WHAT MAY BE TAKEN. 
 
 and the cause was revived against his administrator, while in this 
 the original suit is directly [121] against the executors. The rea- 
 son for that decision is found in this statement : "When the cause 
 was revived against the administrator, he, as such, had neither the 
 requisite knowledge nor authority to make a disclosure binding 
 upon the estate." Clearly this statement does not apply to the 
 present case, where the liability of the garnishee executors to 
 Nolan is fixed by the judgment of the court. * * * Under the dis- 
 closure in this case there is no embarrassment of the executors or 
 delay in settling the estate. The right of Mr. Nolan is fixed by 
 the judgment, and the executors have the money with which to pay 
 it. Courts are not uniform in their holdings upon this question. 
 There are those which hold that when the rights of all parties have 
 become fixed, and all that remains is the payment of the money, 
 which is in the hands of the administrators or executors, the fund 
 is subject to garnishment. * * * [122] * * * Whether an order 
 has been made by the probate court directing the executors to pay 
 the debts as provided in 2 How. Stat. § 5925 et seq., does not ap- 
 pear. No such order is necessary to authorize them to pay. No 
 such claim is made. The estate is settled, except the payment of 
 the debts and the distribution of the estate in accordance with the 
 will. Nothing but payment remains to be done. The executors 
 cannot be embarrassed, as they admit they are ready to pay. If 
 executors can ever be garnished, I see no reason why they cannot 
 in this case. 
 
 We think the court was in error in quashing the proceedings, 
 and therefore the writ should issue, but without costs. 
 
 Long, C.J., concurred with Grant, J. 
 
 SCOTT V. ROHMAN. 
 
 43 Nebraska 618, 62 N. W. 46. (rSps) 
 
 Garnishment of Judgment Debtor — In What Court — Aid of Equity — 
 
 Priority. , . 
 Bill in chancery in the Lancaster district court by Archie A. 
 Scott against Charles Rohman and others, being all tlie interested 
 persons, to determine the rights of the respective parties to money 
 paid into said court by John Fitzgerald in satisfaction of the judg- 
 ment theretofore rendered against him in said court in an action 
 
UNDER GARNISHMENT. 221 
 
 on account wherein John Lanham was plaintiff and said Fitzger- 
 ald defendant. From the decree of the court below complainant 
 appeals. Affirmed. 
 
 Scott's claim is based on a garnishment in the county court of ' 
 Lancaster against said Fitzgerald on a judgment in favor of said 
 Scott against said Lanham on which an execution had been re- 
 turned not satisfied. The garnishment was issued out of the 
 county court and served after verdict returned against Fitzgerald 
 in the district court iti Lanham v; Fitzgerald, but before the judg- 
 ment was entered. Upon garnishee's answer setting up these 
 facts, and the entry of judgment in Lanham v. Fitzgerald, judg- 
 ment was rendered against him ordering him to pay into said 
 county court the amount of Scott's judgment, which was less than 
 the amount of the judgment in I^anham v. Fitzgerald. Instead 
 of doing so, the garnishee paid the whole sum into the district 
 court, and thereupon Scott filed this bill. Rohman claims as as- 
 signee of Lanham under an assignment e'xecuted after the gar- 
 nishment was served. 
 
 A. G. Greenlee, for appellant. 
 
 Webster, Rose & Fisherdick, Daniel F. Osgood, Abbott &• 
 Abbott, and Thomas Ryan, contra. 
 
 The Court by Nerval, C.J. * * * The record discloses that 
 the indebtedness of Fitzgerald to Lanham had been reduced to 
 judgment. The first question therefore presented is whether a 
 judgment debtor can be garnished. Section 212 of the Code pro- 
 vides : "An order of attachment binds the property attached from 
 the time of service, and the garnishee shall be liable to the plaintiff 
 in attachment for all property, moneys, and credits in his hands, 
 or due from him to the defendant, from the time he is served with 
 the written notice." * * * [628] * * * It is very evident that the 
 foregoing provisions are sufficiently broad to cover debts reduced 
 to judgment, and that a judgment debtor is liable to the process 
 of garnishment in a suit against the judgment creditor. The stat- 
 ute is susceptible of no other reasonable construction. It does not 
 exempt any credit of any kind whatever. The decided weight of 
 the decisions in this country lays down the broad doctrine that a 
 judgment debtor may be garnished, and we so hold the law to be 
 
222. WHAT MAY BE TAKEN. 
 
 in this state. Osborn v. Cloud, 23 la. 105 ; Gamble v. Central R. 
 S- B. Co., 80 Ga. 595 ; Wood v. Lake, 13 Wis. 84; Keith v. Harris, 
 9 Kan. 387 ; Skipper v. Foster, 29 Ala. 330 ; 8 Am. & Eng. Ency. 
 Law, 1 169; Drake, Attachment (7th ed.), § 622. 
 
 The question presented by the record to be determined is 
 whether a judgment debtor in the district court of this state is lia- 
 ble to garnishment proceedings issued out of the county court. 
 There is an irreconcilable conflict in the authorities bearing upon 
 the subject. Some decisions are to be found in the books which 
 assert that a judgment debtor in one court may be garnished on 
 process issued out of another court. Luton v. Hoehn, 72 111. 81 ; 
 Allen V. Watt, 79 111. 284; Jones v. New York & E. R. Co., i 
 Grant's Cases (Pa.), 457; Gager v. Watson, 11 Conn., 168. The 
 majority of the cases, and the more recent decisions, sustain [62p] 
 the doctrine that a debt reduced to a judgment is liable to garnish- 
 ment when the process of garnishment issues from the same court, 
 but not otherwise. Drake, Attachment, § 625 ; Waples, Attach- 
 ment & Garnishment (ist ed.), 596; Wallace v. McConnell, 38 U. 
 S. (13 Pet.) 136; Thomas v. Wooldridge, 2 Wood 667, Fed. Cas. 
 No. 13, 918; Henry v. Gold Park Mining Co., 15 Fed. Rep. 649, 5 
 McCreary_(U. S.) 70; Franklin v. Ward, 3 Mason (U. S.) 136; 
 American Bank v. Snow, 9 R. I.ii ; Burrill v. Letson, 2 Speers, 
 (S. Car.), 378; American Bank y. Rollins, 99 Mass. 313; Perkins 
 V. Guy, 2 Mont. 15. In Drake, Attachment, § 625, it is said: 
 "However strongly these reasons apply to the case of a garnish- 
 ment of the judgment debtor in the same court in which the judg- 
 ment was rendered, their force is lost when the judgment is in one 
 court and the garnishment in another. There a new question 
 springs up, growing out of the conflict of jurisdiction 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 court of equity for the payment of 
 money, by garnishing the defendant ; or that of a state court so in- 
 terfering with a judgment of a federal court, or vice versa; it is 
 
UNDER GARNISHMENT. 223 
 
 not to be supposed that, in either case, the court rendering the 
 judgment or decree would or should tolerate so violent an en- 
 croachment on its prerogatives and jurisdiction." * * * [630] 
 * * * In Michigan it has been held that a judgment recovered be- | 
 fore one justice of the peace is not subject to proceedings in gar-; 
 nishment before another justice. Sievers v. Woodburn Sarven 
 Wheel Co., 43 Mich. 275 ; Noyes v. Foster, 48 Mich. 273 ; Custer 
 V. White, 49 Mich. 262. It [731] has likewise been decided that 
 a judgment obtained in the circuit court of a state cannot be gar- 
 nished before a justice of the peace. Clodfelter v. Cox, 33 Tenn. 
 ( I Sneed) 330. To allow a judgment to be garnished in a court 
 other than the one in which it was rendered would subject the 
 debtor to a double judgment on a single liability, and thereby sub- 
 ject him to the danger of being compelled to pay the debt twice. 
 Besides, it would permit one court to interfere with the due exe- 
 cution of process in another tribunal. We are unwilling to place 
 a construction upon the statutes that is liable to lead to such results. 
 Upon principle and authority we are constrained to hold that the 
 garnishment proceedings in the county court, in the case of Scott 
 V. Lanham, were void, and consequently created no lien upon the 
 fund in controversy. 
 
 In the brief of appellant it is said : "All opportunity for con- 
 flict of jurisdiction, or for injustice has been avoided by the pay- 
 ment of the entire amount of the Lanham judgment into the dis- 
 trict court, and the bringing of the equity proceedings in which all 
 parties interested are made defendants, where all the parties can, 
 have their rights adjusted. The garnishee can be protected from 
 double payment and his judgment creditor compelled to satisfy the 
 judgment of record." This position might, and doubtless would, be 
 tenable were it not- for the fact that Lanham, plaintiff's debtor, as- 
 signed his judgment against Fitzgerald to the defendant C. H. 
 Rohman, which assignment was filed in the district court of Lan- 
 caster county, according to the fifth finding of fact, on April 
 10, 1893, several months prior to the institution of this equitable 
 action. Therefore, Lanham had no interest in the judgment or the 
 money paid into court when this action was commenced, and, as 
 we have already shown, the garnishment proceedings created no 
 
224 WHAT MAY BE TAKEN. 
 
 lien upon the money in dispute. There is no room to doubt that 
 when a judgment has been assigned it is not Hable thereafter to 
 garnishment at the suit of the creditor of the assignor. * * * 
 
 AMrmed. 
 
 C. Charging the Garnishee as Debtor. 
 
 a. CHARACTER OF DUMAND, ABSOLUTE OR CdSTTINGENT. 
 
 FOSTER V. SINGER. 
 69 Wisconsin 392, 34 N. W. 395. (1887) 
 
 Garnishment of Wages — Contingent Liability — The Tesft — Debts to 
 
 Become Due. 
 
 Garnishment. Garnishee discharged. Plaintiffs appeal. 
 Affirmed. 
 
 Chas. M. Bice,' for appellant. 
 
 Adolf Herdegen, for respondent. 
 
 The Court by Taylor, J. Foster and others commenced an 
 action in justice's court against M. Phillips, on the 27th day of 
 August, 1885. A garnishee summons was served in said action 
 upon the respondent Singer on the 28th of August, 1885. The 
 action between the appellants and the garnishee was tried in the 
 justice court, and judgment rendered [393] against fee garnishee 
 for $47. From this judgment the garnishee took an appeal to the 
 county court, and on the trial there the court ordered the plaintiff 
 nonsuited, and the garnishee discharged, with costs. From the 
 judgment entered in favor of the garnishee for costs the plaintiffs 
 appeal to this court. 
 
 The evidence on the trial in the coUrt below showed that the 
 garnishee employed Phillips, the defendant in the main action, as a 
 traveling salesinan at a salary of $125 per month, to be paid at the 
 end of each month. The appellant introduced in evidence on the 
 trial in the county court an account taken from the books of the 
 garnishee, showing, among other payments to the said Phillips, 
 that he had paid him on the 31st day of August the sum of $125. 
 This account also shows that Phillips was credited with his salary, 
 $125, on the last day of each month, and that payments were made 
 on the last day of each month for the salary of each month, ex- 
 cept that in the month of July there were credits of $5, on the 6th ; 
 
UNDER GARNISHMENT. 225 
 
 $2 on the 26th ; $5 on the 27th, and $113 on the 31st of July. The 
 evidence of the plaintiffs also showed that the garnishee Singer 
 testified in the justice's court that Phillips was employed by him as 
 a salesman at a salary of $125 per month, due at the end of each 
 month. 
 
 The learned county judge nonsuited the plaintiff because it 
 appeared from all the evidence in the case that there was nothing 
 due or owing by the garnishee to Phillips on the day the garnishee 
 summons was served on him, viz., on the 28th of August, 1885. 
 We think the nonsuit was properly granted. The statute fixes the 
 liability of the garnishee upon the status of his relation to the prin- I 
 cipal defendant at the time the garnishee process is served. See ' 
 sec. 3719, R. S. 1878. The test of the liability of the garnishee to 
 the creditor of the defendant is generally this : Could the defend- 
 ant have maintained an action against the garnishee at [394] the 
 time the garnishee process was served to recover the debt or liabil- 
 ity sought to be garnished ? It seems to us evident that under the 
 testimony given in this case, had Phillips brought his action for \ 
 his salary for August, 1885, on the day the garnishee summons 
 was served, viz., 28th of August, his action would have been pre- 4 
 maturely brought, and he must have failed in his action. There 
 certainly was nothing due to Phillips on the 28th of August, 1885. 
 See St. Louis v. Regenfuss, 28 Wis., 144, 147 ; Allen v. Megguire, 
 15 Mass. 490. 
 
 But it is urged that the statute extends the liability of the gar- 
 nishee to cases in which he would not be liable to an action by his 
 creditor. This claim is well founded. The statute provides that 
 the garnishee shall stand liable to the plaintiff to the amount of the 
 personal property, money, credits, and effects in his hands belong- 
 ing to the defendant, and the amount of his own indebtedness ta 
 the defendant then due, or to become due, and not by law exempt 
 from sale on execution. See sec. 3719, R. S. And the provision 
 for judgment against the garnishee co.ntains a similar provision. 
 See sec. 3725, R. S. 
 
 The only question in the case, therefore, is whether there was 
 anything "to become due" from the garnishee to Phillips, on the 
 28th of August, when he was served with the garnishee summons, 
 within the meaning of the statute above quoted ? We think this- 
 
 15 
 
226 WHAT MAY BE TAKEN. 
 
 question has been answered by this court against the claim of the 
 appellant. In Bishop v. Young, 17 Wis. 47, 53, the present chief 
 justice, in speaking of the construction to be given to the language 
 of the statute above quoted, says : "And the 'debts due or to 
 become due,' evidently relates to such as the garnishee owes abso- 
 lutely, though payable in the future. We have no idea the statute 
 intended to include in the language 'to become due' a debt which 
 , might possibly become due upon a performance of a contract by 
 1 the defendant in attachment. [395] * * * There was nothing 
 absolutely due him at the time of service of garnishee process upon 
 the respondent. And whether anything would become due, de- 
 pended upon a contingency." See also. Smith v. Davis, 1 Wis. 
 447; Huntley v. Stone, 4 Wis. 91. Under the evidence in the case 
 at bar there was nothing due absolutely from the garnishee to 
 Phillips, when he was served with the garnishee summons. The 
 evidence clearly shows a hiring by the month for a salary to be 
 paid at the end of the month, and according to the decisions of this 
 court the contract is an entirety. Phillips could not recover any 
 part of his wages unless he worked the whole month. If Phillips 
 had quit work on the 29th, he could not have recovered any part of 
 his wages for the month. The debt, therefore, would only become 
 (due upon the contingency that Phillips continued to work for the 
 V garnishee for the entire month. See Gordon v. Brewster, 7 Wis. 
 355 ; Lee v. Merrick, 8 Wis. 229 ; Jennings v. Lyons, 39 Wis. 553 ; 
 Diefenback v. Stark, 56 Wis. 462 ; Koplitz v. Powell, 56 Wis. 671. 
 It can make no difference as to his liability whether the sum- 
 mons was served on the 28th day of the month or on the second. 
 In either case whether anything would become due depended upon 
 Phillips working the entire month; and if the garnishee is liable 
 when served on the 28th, he would be equally liable if he had been 
 served on the 2nd, if it appeared on the trial that Phillips had 
 worked the entire month. See, also, upon this subject, Hancock 
 -V. Colyer, 99 Mass. 187; Knight v. Bowley, 117 Mass. 551 ; Wood 
 V. Partridge, 11 Mass. 488; Wyman v. Hichborn, 60 Mass. (6 
 Cush.) 264. There is nothing in the case of Jones v. St. Onge, 67 
 Wis. 520, which in any way changes the rule laid down in the 
 cases above cited in this court. 
 
 The judgment of the county court is aMrmsd. 
 
UNDER GARNISHMENT. 227 
 
 WEBBER V. BOLTE. 
 51 Michigan 113, 16 N. W. 2S7- (1883) 
 
 Qarnishment of Builder in Suit Against Contractor — Contingent Debts, 
 
 Under Statute Making Garnishee Liable for — Lapse of 
 
 Proceedings by Delay — Amendment. 
 
 Garnishment. Plaintiff brings error. Reversed. 
 
 A. A. Ellis, for appellants. 
 
 Mitchel, Bell & McGarry, for appellees. 
 
 The Court by Cooley, J. Two of the questions which were 
 argued in {114] this case seem to us to require no discussion, and 
 we simply announce our conclusions. 
 
 I. The court should not have dismissed the case against the 
 garnishees. The ground of the dismissal was delay in the pro- 
 ceedings. The case was begun September 16, 1881, and was being 
 tried in December, 1882, when the trial judge on his own motion 
 dismissed it, relying upon Blake v. Hubbard 45 Mich, i, for his 
 authority. The defense raised no question of laches, and it is 
 shown that jury trial had been demanded, and it could not Jiav€ 
 been tried at the preceding August term because no jury was sum- 
 moned for that term. 
 
 • 2. The plaintiffs should have been allowed to amend the pro- 
 ceedings against the principal defendant so as to show his name in 
 full. He had been sued upon promissory notes in the name by 
 which he signed them, J. V. Consaul. The plaintiffs proposed to 
 amend by substituting Jacob for J. No question of identity was 
 made, and the amendment should have been permitted at any time 
 when it was found important. 
 
 3. Upon the main question we think both parties have been 
 laboring under some misapprehension. Consaul had contracted 
 with defendants for the erection of a church building which was 
 to be completed November i, 1881. The contract price was $8563. 
 Payments were to be made as the work progressed, to the amount 
 of ninety per cent, of the estimates, and the balance after comple- 
 tion. A forfeiture was agreed upon in the event that the work 
 was not done by the time stipulated. When the suit in garnish- 
 ment was begun defendants had made large payments, and they 
 insist that nothing was then due from them to Consaul. Plaintiffs 
 
228 WHAT MAY BE TAKEN. 
 
 dispute this, but they claim that whether that was so or not, they 
 had a right to hold the defendants for anything that might subse- 
 quently become owing to Consaul for work done by him under the 
 contract. This claim is made under an amendment to the garnish- 
 ment statute, which provides that the garnishee shall "be liable on 
 any contingent right or claim against him in favor of the principal 
 defendant." [115]. Public Acts 1879, p. 270. Consaul's right, 
 it is said, was contingent on his performing his contract: so that the 
 case is within the very words of the statute. 
 
 The case may seem to be within the words of the statute, but 
 it is not within its intent or reason. To permit garnishment upon 
 such claims wofflcTbe a most unwarrantable interference with the 
 contracts of third parties, and must in many cases deprive them of 
 substantial rights. It would be especially mischievous in the case 
 of building contracts ; for in a very large proportion of all cases 
 of such contracts, the means for their fulfillment must be obtained 
 from payments on the estimates ; and if these can be garnished in 
 advance, performance would be rendered impossible. This would 
 be a great hardship to the debtor, but it would be quite as much so 
 to his employer, who might have his arrangements broken up and 
 serious injury inflicted without on his part any fault whatever. 
 
 No doubt the employer has a claim in such a case that the 
 builder shall perform his contract : but the contingency on which 
 money is to be payable is one depending on the subsequent earning 
 of money. It is therefore a contingency depending on the will 
 and ability of the debtor to earn money ; a will which it may gen- 
 erally be assumed will not be exerted where earning is not to be 
 followed by enjoyment. If there is a contingent claim here, so 
 there is when a laborer hires out for a year to be paid at the end of 
 the year; and his creditor may garnish the claim as soon as the 
 hiring takes place. It would be a safe assumption that very little 
 labor would be done under the hiring after the claim was gar- 
 nished. 
 
 Whatever, if anything, was due at the time the process was 
 served in this case, the plaintiffs are entitled to reach.' The ten 
 per cent, kept back as security for final performance might per- 
 haps be considered a sum already contingently earned; but no 
 
UNDER GARNISHMENT. 
 
 229 
 
 question upon that can arise in this case, as it was conceded that 
 Consaul did not complete his contract. The question of fact, then, 
 is narrowed to this : whether the ninety per cept. to which Consaul 
 was entitled [ii6] on the estimates, exceeded at the time this case 
 was begun the amount which had been paid to him up to that time. 
 Upon that question the parties are entitled to produce their 
 evidence. 
 
 The judgment must be reversed with costs and a new trial 
 ordered. 
 
 b. CHARACTER OF DEMAND, EX CONTRACTU OR EX DELICTO. 
 
 LEHMANN v. FARWELL. 
 95 Wisconsin 185, 70 N. W. 170, 37 Lawyer's Rep. An. 333. (1897) 
 
 Garnishment of Tortfeasor — Effect of Verdict in Action for the Tort — 
 When Tortfeasor Chargeable. 
 
 Garnishment by Henrietta Lehmann against the Milwaukee 
 Street Ry. Co. as debtor of Hubert Deuster, principal defendant. 
 John Farwell & Co., Sweet, Dempster & Co., and defendant's wife, 
 Caroline A. Deuster, intervene in the garnishment suit as claim- 
 ants of the fund paid into court by the garnishee. From a judg- 
 ment giving Caroline A. Deuster $622, and Farwell & Co. the 
 remainder, H. Lehmann, C. A. Deuster and Farwell & Co. appeal. 
 AiBrmed. 
 
 The liability of the garnishee was for a negligent injury to the 
 person of the principal defendant, and at the time plaintiff's gar- 
 nishment was served, Deuster has sued and verdict had been re- 
 turned in his favor against the M. S. Ry. Co. for $1,500 for said 
 injury, but no judgment had yet been entered thereon. Judgment 
 had been enteredwHSi Farwell & Co.'s garnishment was served. 
 Sweet, Dempster & Co.'s garnishment was served still later. 
 Deuster's wife claimed by assignment. 
 
 Sylvester, Scheiber, Riley & Orth, for plaintiff. 
 
 Julius Roehr, for Caroline A. Deuster. 
 
 Haring & Frost, for Farwell & Co. 
 • The Court by Winsloiv, ]. * * * The second question is 
 whether a mere verdict in a purely tort action creates a liability 
 which can be garnished. The garnishee is not liable unless at the 
 
 \\ 
 
230 WHAT MAY BE TAKEN. 
 
 time of the service of process his liability to the principal defendant 
 is absolute. R. S. sec. 2768 ; Vollmer v. C. & N. W. R. Co. 86 
 Wis. 305. The question of liability or not is fixed at the time of 
 the service of process, and it must then be absolute, though per- 
 haps payable subsequently. If, however, the liability is contingent 
 on a future, uncertain event, it is not subject to garnishment. 
 Edwards v. Roepke, 74 Wis. 571 ; Dozvling v. Lancashire Ins. Co. 
 89 Wis. 96. A mere claim for personal injuries is not the subject 
 of garnishment. St. Joseph Mfg. Co. v. Miller, 69 Wis. 389. The 
 verdict does not turn it into a debt, nor into an absolute liability. 
 That must be done, if at all, by the judgment. No matter how 
 long a verdict remained on the records of the court, no action could 
 ever be maintained upon it. Thayer v.'Southwick, 74 Mass. (8 
 Gray), [ipi] 229; Rood, Garnishment, § 152. The case of Jones 
 v. St. Onge, 67 Wis. 520, is claimed to support the contrary doc- 
 trine. While there may be language in the opinion in that case 
 which would tend to support the theory that a mere verdict 
 in a tort action is subject to garnishment, the case itself was 
 evidently rightly decided upon another ground. In that case the 
 garnishee had been sued in replevin for certain logs by the main 
 defendant, and the verdict rendered was that St. Onge, the main 
 defendant, was the owner of the logs, and that the garnishee un- 
 lawfully withheld possession of them, and fixed their value. After 
 verdict and before judgment, the garnishment papers were served. 
 It was plainly a proper case for garnishment, because the garnishee 
 had property of the main defendant in his hands, or was indebted 
 to him therefor, at the time process was issued. In fact, the verdict 
 neither helped nor hindered the liability of the garnishee. He 
 would have been liable had no suit been pending at all, because he 
 had property of the main defendant in his hands at the time the 
 garnishee process was served, or was indebted to the main defend- 
 ant to the amount of the value of such property. So far as the St. 
 Onge Case seems to justify the doctrine that a mere verdict in an 
 action to fecover damages for personal injuries is the subject of 
 gfarnishment, we cannot follow it. It follows that the plaintiff's 
 garnishmenTmust f aiI7 because she garnished after verdict and 
 before judgment, and the'Farwell & Co. process becomes the first 
 
UNDER GARNISHMENT. 231 
 
 lien upon the moneys in court after the claim of Mrs. Deuster is 
 paid. These were the conclusions reached by the court below. 
 
 Judgment aMrmed. 
 
 C. CHARACTER OF DEMAND, LIQUIDATED OR UNLIQUIDATED. 
 
 See above case; Wilson v. Louis Cook Mfg. Co., ante, 39; and Rood 
 Garnish. §§ 148-152. 
 
 d. CHARACTER OF DEMAND, PAYABLE IN CASH OR IN KIND. 
 
 JONES'S ADM'R v. CREWS, 
 64 Alabama 368. (1879) 
 
 Garnishment — Demands Payable in Kind — Test of Garnisliee's Lia- 
 ability as Debtor. 
 
 Garnishment by James H. Perdue, as administrator of Joseph 
 A. Jones, upon a decree in chancery in favor of said J. A. Jones, 
 deceased, against Sarah J. Jones, the garnishment process being 
 against C. Madison Crews. From a decree discharging the gar- 
 nishee complainant appeals. Affirmed. 
 
 The Court by StoHe, J_ * * * Garnishment is a proceeding 
 of purely statutory creation, unknown to the common law; and 
 while we are inclined to ^onstrue it favorably, as highly remedial 
 and beneficial, we have no power to originate machinery, or proc- 
 ess, by which to adapt it to conditions, which its statutory provi- 
 sions are not broad enough to cover. The court having power onl}' 
 to render an unconditional money judgment against the garnishee, 
 or to condemn personal chattels in his hands, it early became a 
 question.what description of debt or liability would [3/2] author- 
 ize a personal money judgment against the garnishee. It was set- 
 tled, that only such debts as would maintain debt, or indebitatus 
 assumpsit, if sued on .by the defendant, could be the subject of 
 such condemnation and personal judgment. * * * [373] * * * 
 
 In the present case, the garnishee was summoned, and filed 
 his answer in October, 1878. He admitted he had executed to the 
 defendant, Jones, his two promises in writing, one for the pay- 
 ment of four bales of cotton, of certain class and weight, October 
 iSth, 1879, and the other for the payment of six bales, October 
 iSth, 1880. "At the October term of the [374] court, 1878, the 
 chancellor discharged the garnishee on his answer. It will be ob- 
 
232 WHAT MAY BE TAKEN. 
 
 served that, under this contract, Crews, the garnishee, made no 
 promise to pay money. Neither was it a promise to pay a sum 
 of money, which might be discharged by the dehvery of cotton. 
 It was a simple promise to deliver and pay cotton. When 
 the garnishment was sued out and served, and when the an- 
 swer of the garnishee was filed, it could not be known that the 
 liability from Crews to Jones would ever become a money debt 
 We cannot indulge the presumption that Crews would violate his 
 contract, and fail to deliver the cotton. The court had no power 
 to change the obligation to deliver cotton, into a promise to pay 
 
 money. * * * 
 
 The decree of the chancellor is affirmed. 
 
 Some statutes are so broad that the garnishee may be charged for 
 demands not payable in money, but the judgment can be only that 
 he pay to the sheriff having the writ against him what he had con- 
 tracted to furnish the defendant and at the same time and place named 
 in the contract. Stadler v. Parmlee, 14 Iowa 175. See also Drake, 
 Attach. § 550; Rood Garnish. §§ 115-117. 
 
 e. DEMANDS FOR THE PAYMENT OF WHICH THE DEFEND- 
 ANT HOLDS SECURITY. 
 
 CALDWELL v. STEWART. 
 30 Iowa 379. (1870) 
 
 Garnishment — Demands for Payment of Which Defendant Holds Secur- 
 ity — Effect of Payment After Garnishment. 
 
 Attachment by Caldwell against Tepfer under which Stewart 
 was served as garnishee. From a judgment for $41.25 against 
 the garnishee on his answer he appeals. Modified and affirmed. 
 
 The garnishee's answer showed that when summoned he with 
 his family was stopping at the defendant's hotel, and owed him 
 $21 for accommodations up to that time; that as soon as the gar- 
 nishment was served defendant informed the garnishee that his 
 baggage would be held till the board bill was paid ; that he would 
 not keep garnishee or his family unless payment for future board 
 was pledged and secured; that garnishee thereupon pledged pay- 
 ment and when he left town a few days later paid his bill in full 
 to date, $41.25. 
 
 Lowe & Mooar, for appellant. 
 
 Curtis & Seaton for appellee. 
 
UNDER Gi^RNISHMENT. 
 
 233 
 
 The Court by Miller, J. I. As to the $21.00 which the appel- 
 lant was indebted to the defendant at the time of the service of the 
 process of garnishment there can be no serious question. The j 
 garnishee was indebted to the defendant to that amount, and the i 
 service of process had the effect, in law, to transfer the indebted- 
 ness from the defendant to the plaintiff. The plaintiff, by his at- 
 tachment of the debt due from the garnishee to defendant, took 
 the place of the defendant, and succeeded to his (the defendant's) 
 rights for its rcovery. The plaintiff, by the garnishment, sued 
 the garnishee (the debtor) in the name of the defendant (the 
 creditor), and was entitled to recover such sum as the defendant 
 would have been entitled to if he had sued the garnishee in a direct 
 action for the board bill then due. And these rights and liabili- 
 ties are in nowise affected by the fact that the debt due was by a 
 guest to an innkeeper, [381] for the payment of which the latter 
 had a lien on the baggage of the former. The lien only existed 
 until payment, and whether the service of the g9,rnishment process 
 operated to divest the lien or not, the appellant could, at once, 
 have paid the amount then due over to the sheriff, and thereby re- 
 leased his baggage from the lien. Rev., § 3207. 
 
 The appellant cites authorities holding that "goods of a guest 
 at an inn are not distrainable for rent," and argues therefrom that 
 a debt due by a guest to his host is not the subject of garnishment. 
 Our statute, in general terms, makes debts due by one person to 
 another liable to be attached, by the process of garnishment, at the 
 suit of a creditor of the latter, and the only exception made in the J 
 statute is in the case of debts due by a municipal or political cor- 
 poration. They cannot be garnished. Rev., §§ 3194, 3195, 3196 
 and 3197. By this exception in the statute, the legislature, by im- 
 plication, say that it is the only one intended. 
 
 II. As to the amount of appellant's hotel fare, after he was 
 garnished, the court erred in giving judgment against him there- 
 for. It is true that, by the process of garnishment, debts to be- 
 come due as well as those already due are held. But the fare of 
 the appellant and his wife, after the garnishment, never assumed 
 the character of an indebtedness. The appellant was required by 
 the defendant and did pledge the payment of the boarding of him- 
 
234 WHAT MAY BE TAKEN. 
 
 self and wife, in advance, for such time as they remained at the 
 
 defendant's hotel. Whether the pledge consisted in money or 
 
 property is not shown by the answer. If it was money, then the 
 
 innkeeper was paid in advance to the extent of the amount pledged 
 
 for the boarding. In the case of a purchase of goods for cash, no 
 
 indebtedness is created that would be the subject of garnishment. 
 
 The vendor retains the goods until the price is paid. No title 
 
 passes to the vendee until he has paid the price. So, also, [382] 
 
 if an innkeeper requires his guest to pay for each meal before he 
 
 receives it, or to pledge payment, in advance, for all the meals and 
 
 lodging he may obtain, no indebtedness arises that is the subject 
 
 of garnishment. 
 
 The judgment of the court below should have been for $21.00, 
 
 the amount due by appellant to Tepfer at the time he was attached 
 
 as garnishee, and for no more. Thus modified the judgment is 
 
 affirmed, the appellee to pay the costs of this appeal. 
 
 Modified and aMrmed. 
 
 Tlie creditor recovering judgment against the garnishee for a 
 debt is entitled to foreclose any security held by the principal debtor 
 to obtain payment. Alsdorf v. Reed, 45 Ohio St. 6^3, 17 N. B. 73 ; White 
 v. Simpson, 107 Ala. 386, 18 South. 151. See also Rood, Garnish., § 
 127, and cases cited. 
 
 f. DEMANDS EVIDENCED BY COMMERCIAL PAPER. 
 
 THOMPSON V. GAINESVILLE NATIONAL BANK. 
 66 Texas 156, 18 S. W. 3S0. (1886) 
 
 Garnishment — Garnishee's Liability on Debts Evidenced by Commercial 
 
 Paper — Effect of Renewal or Maturity in Hands of 
 
 Defendant After Garnishment. 
 
 Garnishment. Garnishee appeals. Affirmed. 
 Potter & Smith, for appellant. 
 
 Stuart & Bailey, for appellee. 
 
 The Court by Willie, C.J. The Gainesville National Bank ob- 
 tained a judgment against A. J. Addington, and on June 20, 1885, 
 had a writ of garnishment sued out thereon, and served upon the 
 appellant, Thompson. On November 2, 1885, Thompson filed his 
 answer denying any indebtedness' to Addington, or having any 
 effects of his in possession, either at the date of serving the writ 
 
UNDER GARNISHMENT. 235 
 
 or of making the answer. This answer was controverted by the t 
 bank on the ground that on July 12, 1884, Thompson executed a I 
 note to Addington, payable twelve months after date, and that this / 
 note at the time the writ was served was held as collateral by one ' 
 Smith to secure a debt due to Smith from Addington. The terms | 
 of the note as stated in the contesting affidavit showed that it ma- j 
 turedj^reyious to the filing of the answer, though it was not due I 
 when the writ of garnishment was served. 
 
 The proof before the judge who tried the cause.without a jury, 
 was conflicting in some important respects bearing upon the liabil- 
 ity of the note tothe garnishment proceeding. The judge subjected 
 the note to the garnishment. In passing upon his judgment we 
 must, in case of conflict of evidence, treat as true the testimony to 
 which he must have given credence in making up his conclusions. 
 The case before us, therefore, is that of a garnishee indebted to the 
 judgment defendant upon a negotiable note, not due when the writ 
 was served, but maturing before answer filed, and paid before that 
 time, but after maturity, to the judgment defendant, he being at 
 the time still owner of the note. 
 
 The law is well settled that the maker of an overdue note can I 
 be garnished for a debt due the owner. The note cannot be as- ' 
 signed to an innocent holder, free from such defences as the maker 
 could set up in a suit against him by the assignee. Garnishment 
 at suit of the assignee's creditor would be a good defence, and 
 hence the maker is fully protected when compelled by judgment 
 to pay the amount of the note to the plaintiff in garnishment. It 
 seems settled, too, by the weight of authority that if the note is due' 
 and owned by the payee at the time judgment in garnishment is 
 rendered, the maker is liable to such judgment, though, at the time 
 he was served, the note had not matured. Drake on Aattch., §§ 
 587, 588. 
 
 The authorities recognize the right to charge the maker after 
 the note matures, provided, that at the date of serving the writ, the 
 note [158] was the property of the payee. Bassett v. Garthwaite, 
 22 Tex., 230, and other cases cited in note to § 623, Sayles' 
 Treatise. 
 
 This is, in efifect, to require the maker to answer as to his in- 
 
236 WHAT MAY BE TAKEN. 
 
 debtedness upon a note not due, so that the plaintiff may charge 
 him in garnishment by showing that it belonged to the defendant 
 when service was made, and had since matured, and was still the 
 property of the defendant. The law exempts the maker from a 
 judgment in garnishment whilst the note is current, because he 
 would not otherwise be protected by the judgment from his lia- 
 bility to the holder. But, if he is fully protected by the judgment, 
 there is no reason why one should not be rendered against him, 
 though the note was not due when the writ was served. 
 
 Protection being secured to the maker, the reason of the law 
 for not subjecting him to garnishment has ceased, and the plaintiff 
 should be entitled to the benefit of his indebtedness to the defend- 
 ant. He may not be able to secure this benefit without proceed! 
 ing before the note became due. It is this that lays the foundation 
 for a judgment after the maturity of the note, and to obtain this 
 judgment he must be allowed to have an answer as to the condi- 
 tion of the indebtedness at the date of the service, to prove, if he 
 can, that it was a debt upon a note, though negotiable and current, 
 and that, at the time of service, the note belonged to the defendant. 
 
 This does not interfere with the maker's rights in the least, 
 for, if the note thereafter and before maturity, has been assigned, 
 the judgment cannot be rendered. The burden of proof is on the 
 plaintiff to show that the payee has not transferred the note before 
 maturity, otherwise the garnishee must be discharged. As to 
 what effect a transfer after maturity would have, we need not now 
 determine. 
 
 But the protection afforded the maker of the note is against 
 a transfer by the payee to other parties. It is only in this event 
 that he can be endangered by a judgment in garnishment. No 
 other disposition of the instrument before judgment subjects him 
 to a suit by any other person than' the payee, and to a suit by him 
 the judgment in ganishment is a full defence. Against the maker's 
 own collusion with the payee to defeat the plaintiff's right to the 
 judgment, the law does not protect him. 
 
 If, as in this case, whilst the note is still owned by the payee, 
 and overdue, and not liable to pass to an innocent holder, the maker 
 settles it with the payee, there is no reason why he should be pro- 
 
UNDER GARNISHMENT. 237- 
 
 Lected against a judgment in tlie garnishment proceedings. He 
 has voluntarily paid a debt due from him to the defendant, which 
 the latter could not have recovered. [i5p] 
 
 After a judgment against the garnishee in favor of the plain- 
 tiff in garnishment, with full notice that the plaintiif had laid the 
 foundation for such a judgment, he has paid the note, not for his 
 own protection, but to enable the defendant to avoid the payment 
 of a debt, which the plaintiff was entitled to enforce against him, 
 and which he might have enforced, but for this collusion between 
 the defendant and the garnishee. 
 
 It being perfectly apparent that none of the reasons why the 
 maker of negotiable paper, current at the date of serving the writ 
 of garnishment, should be exempt from the proceedings are ap- 
 plicable to the present case, and that neither the maker nor any 
 innocent holder of the paper are in the least prejudiced by the gar- 
 nishment, we are of opinion that the case presented was a proper 
 one for a judgment against the garnishee. 
 
 The same conclusions have been reached in the courts of one 
 other state, and we are pointed to no decisions to the contrary. 
 Leslie v. Merrill, 58 Ala. 322. Whether the same rule would hold 
 if the note had been paid before maturity we are not called upon 
 to decide in the present appeal. 
 
 We are of opinion that the judgment below is correct, and it 
 is affirmed. 
 
 AMrmed. 
 
 g. DEMANDS REPRESENTING THE PROCEEDS OF EXEMPT 
 PROPERTY. 
 
 REYNOLDS v. HAINES. 
 83 Iowa 342, 49 N. W. 851, 32 Am. St. 311, 13 L. R. A. 719. (1891) 
 
 Garnishment — Proceeds of Exempt Property, Liability to Process — 
 Cause of Change, Importance. 
 
 Garnishment by Reynolds & Churchill seeking to charge the 
 Capital Ins. Co. as garnishee of G. W. Haines, principal defend- 
 ant. From judgment discharging the garnishee plaintiffs appeal. 
 Affirmed. 
 
 G. H. Phillips and Ainszvorth & Hobson, for appellants. 
 
 H. W. Clements, for appellee. 
 
238 WHAT MAY BE TAKEN. 
 
 The Court by Beck, C.J. I. The plaintiffs caused process of 
 
 garnishment to be issued against the Capital Insurance Company 
 
 upon a judgment against the defendant, [343] claiming that the 
 
 insurance company is a debtor of the defendant upon a policy 
 
 issued to him upon which there had been a loss of the property 
 
 insured. A motion to dismiss the proceeding was sustained upon 
 
 ' the grounds, which were not disputed, that the property insured 
 
 ,was exempt from execution, being books, instruments, etc., used 
 
 by the defendant, who was a physician and surgeon, in the prac- 
 
 I tice of his profession. 
 
 II. The question presented for decision by the record is this : 
 Are the avails of insurance upon personal property which is ex- 
 empt under the statute from debts of the assured also exempt? 
 The statute. Code, § 3072, declares that, "If the debtor is a resi- 
 dent of this state, and is the head of a family, he may hold exempt 
 from execution" certain personal property, which includes the 
 books, instruments, etc., of a physician, the property covered by 
 the policy of insurance in this case. There is no provisi-on as to 
 the exemption or liability of the proceeds or avails of such prop- 
 erty when disposed of by sale or otherwise. 
 
 III. The purpose of the statute is to secure to the debtor who 
 is the head of the family — a physician and surgeon in this case — 
 the instruments, books,- and other articles which enable him to 
 practice his profession. Its purpose is to secure the necessaries 
 of life — food, raiment and shelter — to families who are depejident 
 upon the heads thereof, by securing to them the instruments and 
 means by the use of which they are enabled to support their fami- 
 lies. The exemption is plainly for the benefit of the families of 
 debtors, for those having no family can claim no exemption. The 
 statute must be liberally construed, to carry out its purpose and 
 spirit. Bevan v. Hayden, 13 Iowa, 122; Davis v. Humphrey, 22 
 Iowa, 138; Kaiser v. Seaton, 62 Iowa, 463. The debtor in the 
 case before us was authorized, under the statute, to hold the 
 property in question exempt from debts, if it were used for the 
 purpose of his profession. [344] It is plain that the uSe for 
 which the property was kept determined the question of its ex- 
 emption. The books, instruments, etc., of the physician and sur- 
 
UNDER GARNISHMENT. 
 
 239 
 
 geon may be kept subject to the authority to change them, by sale 
 or otherwise, in order to procure those of better character or im- 
 proved construction. It is plain that the physician may sell his 
 books, and replace them by better ones. Such sale is a proper 
 use of his books and instruments in his profession. Another 
 proper use of his books and instruments is their preservation from 
 injury and destruction. He may insure them, to protect himself / 
 and family from loss from fire. The fact that they were insured/; 
 would not make them subject to his debts. If they are destroyed 
 by fire, the indemnity secured by insurance stands in the place 
 of the books. It is intended to preserve the physician's library 
 by securing means for its restoration after it is lost by fire. 
 Surely that indemnity which is the indebtedness of the insurance 
 company, or the money paid by it, stands in the place of the 
 • library, and ought to be, as it is, exempt from execution. The 
 money due on the policy stands in the place of the property de- 
 stroyed, and this must be true whether the money takes the place 
 of the property by contract, or is acquired in invitum by proceed- 
 ings against the owner. 
 
 It is plain that a trespasser, by appropriating the property 
 and converting it to his own use, cannot make it subject to the 
 payment of the owner's debts by holding the value of the property 
 the measure of the debtor's damages for the trespass, subject to 
 garnishment by the creditors. If he could do this, it would be a 
 convenient method to defeat the exemptions of the statute. As 
 we before remarked, the object of the statute is to secure to the 
 family the benefit of certain property. These benefits cannot be 
 enjoyed unless the debtor have the unrestricted use and control 
 of the property free from liability for debts as long as it is owned 
 [345] ^rid used by him. When it is used for other purposes than 
 the support of the family, it becomes liable for debts. But the 
 change of the property into money will not indicate an immediate 
 abandonment of the claim of exemption to the money on the 
 ground of a purpose to invest it in like or other exempt property. 
 Until an opportunity exists to make such investment, which is not 
 a change of articles of exempt property, the debtor ought not to 
 be presumed to abandon his claim. The debtor, as we have seen 
 
240 WHAT MAY BE TAKEN. 
 
 has the authority to change the articles of exempt property by sale 
 and purchase, exchange or otherwise. He cannot be presumed 
 to have abandoned his right to this authority until he has had an 
 opportunity to exercise it. The creditor cannot complain of its 
 exercise. He is defeated of no right thereby. The property is 
 held free of his debt, and he is not prejudiced by the change to 
 other like property. These doctrines and conclusions find sup- 
 port in the following decisions of this court: Kaiser v. Seaton, 
 62 Iowa, 463; Mudge v. Lanning, 68 Iowa, 641. See, also, cases 
 cited in Kaiser v. Seaton, supra, and the following : Evans v. St. 
 Paul Harvester Works, 63 Iowa, 204; Brainard v. Simmons, 67 
 Iowa, 646 ; Leavitt v. Metcalf, 2 Vt. 342 ; Mulliken v. Winter, 63 
 Ky. (2 Duv.) 256; Tillotson v. Wolcott, 48 N. Y. 188. 
 
 Counsel for the plaintiffs cite Wooster v. Page, 54 N. H. 125. 
 It is not in harmony with our conclusions. We think that the rea- 
 soning upon which it is based is not sound. Other cases cited by 
 the same counsel are not in conflict with our conclusions. They 
 are to the effect that sales of exempt property, with no purpose 
 to reinvest the avails in other like property, or to exchange the 
 articles of exempted property, or are cases involving the exemp- 
 tion of pension money, and some other cases involving like ques- 
 tions, none of which are in conflict with our conclusions in this 
 case. 
 
 We reach the conclusion that the judgment of the district 
 
 court ought to be afifirmed. 
 
 This decision is believed to be in accord with, the decisions in 
 every state except Mew Hampshire and Mississippi. See Smith v. 
 Ratcliff, 66 Miss. 683. For extended review of the decisions see Rood, 
 Garnish. §§ 96-99. 
 
 h. DEMANDS IN SUIT OR JUDGMENT. 
 See Scott v. Rohman, ante, p. 220. 
 
UNDER GARNISHMENT. 241 
 
 i. EFFECT OF ORDERS, CHECKS, ETC., AS ASSIGNMENTS OF 
 THE DEMAND. 
 
 MOORE V. DAVIS. 
 57 Michigan 251, 23 N. W. 800. (1885) 
 
 Garnishment — Effect of Orders, Checks, Etc., as Assignments of Fund — 
 Rule and Exceptions. 
 
 Garnishment by Edward C. Moore against Alex. R. and Wm. 
 F. Linn as debtors of the principal defendant, John C. Davis. The 
 First National Bank of Madison, Indiana, intervened as claimant. 
 From a judgment for plaintiff, claimant brings error. Reversed. 
 
 The case was tried below before the court without a jury and 
 the court found as facts, that the garnishees confessed liability in 
 the sum of $139.65 for goods purchased ; and that before the gar- 
 nishment was served the claimant in the regular course of its busi- 
 ness, had received from Davis a draft for the amount with a copy 
 of the account annexed and paid him for same less the regular dis- 
 count. 
 
 Wm. J. Gray, for appellant. 
 
 Geo. W. Bates, for appellee. 
 
 The Court by Cooley, C.J. * * *The controversy, it will be V 
 seen, turns upon the question [255^ whether the draft by Davis 
 on the Linns operated as an assignment of the demand. It was 
 received and discounted by the claimant before the garnishment 
 summons was served, and the Linns were notified of the facts be- 
 fore they answered. If, therefore, the draft transferred the de- 
 mand to the bank, the judgment is erroneous. 
 
 In the recent case of Grammel v. Carmer, 55 Mich. 201, the 
 question whether a draft was an assignment of the fund in the 
 drawee's hands, to the extent of the sum drawn for, was consid- 
 ered and decided in the negative. That, however, was the case 1 
 of a banker's draft, and it was not drawn for the whole fund in ' 
 the drawee's hands. Many cases were cited in the opinion filed 
 in that case, and the following, not then cited, are to the same 
 efifect : Shand v. Dii, Buisson, L. R. 18 Eq. 283 ; Lewis v. Traders' 
 Bank, 30 Minn. 134; Jones v. Pacific Wood &c. Co., 13 Nev. 359; 
 Rosenthal v. Mastin Bank, 17 Blatchf. 318, Fed. Cas. No. 12063 1 
 Dolsen v. Brown, 13 La. Ann. 551 ; Sands v. Matthews, 27 Ala. 
 399- 
 
 16 
 
242 WHAT MAY BE TAKEN. 
 
 But this case differs from Grammel v. Carmer in the fact that 
 the draft now in question was drawn for the exact amount of a 
 sum claimed to be due from the drawees to the drawer for a bill 
 of merchandise, and that the account was attached to the draft, 
 evidently for the purpose of being sent forward with it. When 
 thus sent forward, it would explain to the drawees the account on 
 which it was drawn; but it must also have been understood to 
 serve a further purpose, namely, to be evidence in the hands of 
 the drawees that the account was paid when the draft was taken 
 up by them. There could be no sufficient reason for attaching it 
 . at all, unless it was understood that payment of the draft would 
 be payment of the account as well. 
 
 By the general commercial law, as was said in Grammel v. 
 Carmer, the purchaser of a draft is supposed to take it in reliance 
 upon the responsibility of the drawer, and he has no other reliance 
 until it is accepted. This is the general rule. But if the draft is 
 for the whole amount of a fund, the draft may, in connection with 
 other circumstances, tend to show an intent that it should oper- 
 ate as an assignment. First [2§6] Nat. Bank of Canton v. D. S. 
 W. Ry. Co., 52 Iowa, 378. And whereas, in this case, the draft 
 is for the amount of an account, and the account is attached, the 
 purpose to assign appears on the papers themselves, and they need 
 no support from collateral circumstances. The payee, then, in 
 taking the draft has a right to understand that, in addition to the 
 responsibility of the drawer, he has such security for payment as 
 may be supplied by the account, and that he may collect the ac- 
 count for the satisfaction of the draft. The drawer, by the papers, 
 in effect, says to the drawee : "This is my bill against you, which 
 I have sold to the payee by this draft, and you are requested to 
 make payment of it to him." This is what a business man would 
 have a right to understand from them. The draft with the bill 
 thus attached is not an ordinary bill of exchange, but it is an order 
 that the debtor shall pay the amount of his debt to the person to 
 whom it is delivered. The fact that the draft is negotiable in 
 form is of no importance. It does not at all tend to rebut the evi- 
 dence of intent on the part of the creditor to assign the demand. 
 
 The judgment must be reversed. 
 
- UNDER GARNISHMENT. 243 
 
 /. BURDEN OF PROOF. ETC. 
 
 HEWITT V. WAGAR LUMBER CO. 
 38 Michigan 70i. (1878) 
 
 Garnishment — Burden of Proof — Adnaissions — Testimony by Officer of 
 Garnishee Corporation. 
 
 Garnishment by Hewitt against Wagar Lumber Co. as debtor 
 of Myers, the principal defendant. From judgment discharging 
 the garnishee plaintiff brings error. Affirmed. 
 
 Mitchell & Pratt, for appellant. 
 
 John Toan and Wells & Moore, for respondent. 
 
 The Court by Graves, J. * * * Waiving all questions of 
 jurisdiction and likewise [^05] all objections against the correct- 
 ness of the plaintiff's earlier proceedings, it is still left to in- 
 quire whether the record shows that the plaintiff made out any 
 case on the facts fairly entitled to be submitted to the jury. 
 Because if it does not, the result cannot be disturbed. 
 
 It is a general rule and one applicable to this case that where- 
 ever in consequence of the nature of the subject it is a matter 
 of absolute indifference whether a given state of facts does or does 
 not exist, the party who grounds his claim or defense upon its 
 existence must remove that indifference in order to succeed; and 
 meanwhile the opposite party may safely remain passive and insist 
 upon a determination in his own favor if that is not done. And 
 the party upon whom it rests to support the affirmative must main- 
 tain it substantially. "It is not enough for him to make out a bal- 
 anced case and then leave it to a jury to guess at the truth." Bron- 
 son, C. J. in Bogert v. Morse, i Comt., 377. And if the evidence is 
 consistent as much with some other state of facts as that required 
 to sustain the particular proposition, whether express or tacit, it 
 proves neither, and hence is ineffective. Jackson v. Metropolitan 
 Railway Co., L. R. 2 C. P. Div., 125. 
 
 The plaintiff charged against the corporation that at the very 
 time when the notice was left with the president on March 30, 
 1877, it was indebted to Myers, and whether it was so or not 
 depended upon facts which were as likely to be one way as the 
 other, and it was incumbent on the plaintiff to prove that the facts 
 were as the substantiation of his claim required they should be.- 
 
244 WHAT MAY BE TAKEN. 
 
 He recognized what his position involved and attempted to prove 
 his allegation. 
 
 The only witness called was the president of the corporation 
 and he swore that Myers had been executing a lumber job in the 
 woods for the corporation amounting to some $i,6oo or $i,8oo; 
 that it had not been accepted but witness inferred it had been com- 
 pleted because [/o6] Myers had "come out of the woods." Per- 
 formance of the job was not proved. The witness stated there 
 had been no settlement, but the entries in the corporation books 
 indicated a balance of $500 or $600 still unpaid; that he had no 
 knowledge whether the corporation owed anything to Myers 
 except as gathered from the apparent state of accounts in the 
 books ; that prior to the service of the notice, but on the same day, 
 one Alderman informed witness that Alyers had assigned to him 
 the demand against the corporation, and that Alderman at the same 
 time exhibited to witness a writing apparently by Myers, and or- 
 dering the corporation to pay Alderman or bearer whatever was 
 due Myers for lumbering. * * * Now if we consider the facts to- 
 gether as we must, they do not result in showing, nor fairly conduce 
 to show as against the corporation the matters indispensably neces- 
 sary to make out and support plaintiff's claim. If the witness had 
 been garnishee and had made similar explanations concerning his 
 own affairs, there would be room for some other considerations. 
 But in order to give to his statements the sense and value they 
 merit as matter of law, his relation to the transaction, to the parties 
 and to the case must be kept in mind. The entire effect of his rela- 
 tion as a showing of fact against the corporation is that Myers 
 was doing a large job for the corporation and that an inspection 
 of the entries in account in the corporation books indicated that 
 $500 or $600 of the contract price was still unpaid. As to whether 
 this balance had become as yet an actual debt [707] at all against 
 the corporation, or if it had, whether it still belonged to Myers, 
 wa:s left indeterminate and without means to decide. As the facts 
 in the record do not import that the plaintiff made a case for the 
 jury, no error he can complain of is shown. My brethren concur 
 in the view here taken. * * * 
 
 The judgment must be affirmed with costs. 
 
XL CHARACTER OF THE CREDITOR'S LIEN OR 
 RIGLIT UNDER THE PROCESSES. 
 
 1. Right to the Specific Peopbety Attee Sale Undee a Junioe Weit, 
 
 245. 
 
 2. Eight to the Peoceeds in Couet When the Ofpicee Has Levied and 
 
 Sold Undee a Junioe Weit, 247. 
 
 3. Eight to Follow the Proceeds Aftee Weongful Payment to a 
 
 Junioe Ceeditoe^ 252. 
 
 4. Eight to Eecovee of the Offices and His SueetieSj 255. 
 
 A. For Failur.e to Uxecute the Writ, 255. 
 
 a. Before the Property was Levied on Under Other Writs, 255. 
 6. Before the Eeturn Day, 263. 
 
 ti. For Failure to Complete tlie Execution of the Process after the 
 Eeturn Day and the Expiration of the Officer's Term, 267. 
 
 B. For the Value of Property Taken Under the Writ and Surrendered, 
 
 Lost, or Destroyed, 269. 
 
 5. Eight Against a Puechasee foe Value at Peivatb SalEj 273. 
 
 6. Eight A6ainst Anothbe Officer and Cebditob Who Have Taken the 
 
 Peopbety Undee a Junioe WeiTj 275. 
 
 7. Eight to the Peopeety Aftee Wbongful Eblbasb oe Abandonment 
 
 BY Officee, 279. 
 
 A. Against the Debtor, 279. 
 
 B. Against a Sul)sequent Purchaser for Value, 280. 
 
 8. Chaeactbe of the Lien Acquibed by Gaenishment, 282. 
 
 9. How THE Debtoe's Inteeest May be Foebclosbd and the Lien Eifbned 
 
 into an Absolute Title, 288. 
 10. Effect of the Death of the Judgment Dbbtoe, 292. 
 
 1. RIGHT TO THE SPECIFIC PROPERTY AFTER SALE UNDER 
 A JUNIOR WRIT. 
 
 SMALLCOMB v. CROSS and BUCKINGHAM. 
 I Lord Raymond 251, i Comyns 35, i Salk. 320. (9 Will. IIL A.D. 1697) 
 
 Who Entitled to First Levy — Common Law Rule — 29 Car. II. Rule — 
 
 Levy and Sale by Shreiff under Last Writ — First 
 
 Creditor's Right to Retake Property. 
 
 This decision, rendered by the English Court of Common Pleas, Holt, 
 C.J., Rokeby, Turton and Eyer, JJ., is given according to the report by 
 Lord Raymond. The reporters do not disagree as to the material facts, 
 but the other reports give them more in detail. 
 
 In trover for goods, upon the general issue pleaded, at thp 
 trial at nisi prius in London at Guildhall, before Holt, chief jus- 
 tice, the fact appeared to be thus : /. 5'. recovered judgment in 
 debt against Fox, and /. N. recovered another judgment against 
 Fox. J. S. sued a Heri facias upon his judgment, which was de- 
 
246 CHARACTER OF THE CREDITOR S LIEN OR RIGHT. 
 
 livered to the sheriffs of London at nine o'clock in the morning, 
 but he would not take a warrant of the sheriff to levy the goods, 
 but procured the writ to be indorsed according to the statute of 
 29 Car. 2. cap. 3. /. N. sued another fieri facias, which bore teste 
 before the fieri facias of /. 5'. but was delivered to the sheriffs sub- 
 I sequent to the fieri facias of /. S., viz. at ten o'clock in the morn- 
 ing, but both the writs were delivered the same day. /. A'', took 
 a warrant from the sheriffs, and levied the goods in execution, 
 which the sheriffs sold to the plaintiff Smallcomb. Afterwards 
 the sheriffs seized the goods in [252] execution upon the fieri 
 facias of /. S. and sold them to the defendant Cross. And now 
 Smallcomb brought trover against Cross and the sheriffs of Lon- 
 don; and this matter appearing upon the evidence, Holt, chief jus- 
 tice doubting of it, appointed that it should be moved in court. 
 And after argument on both sides it was resolved by the judges 
 that if two writs of execution are delivered to the sheriff the 
 same day, he has not an election to execute which he pleases, but 
 he must execute that which was first delivered. But if the sheriff 
 levies goods in execution by virtue of the writ last delivered, and 
 makes sale of them (whether the last writ was delivered upon the 
 same day or a subsequent day) the property of the goods is bound 
 by the sale, and the party cannot seize them by virtue of his exe- 
 cution first delivered ; but he may have his remedy against the 
 sheriff. For sales made by the sheriff ought not to be defeated, 
 for if they are, no man will buy goods levied upon a writ of exe- 
 cution. And at common law if a fieri facias had been sued the 
 first day of the term, and another fieri facias afterwards, and the 
 last had been first executed, the other had had no remedy but 
 against the sheriff. But in this case no action lies against the 
 sheriff, because he who delivered his writ first would not take a 
 warrant from the sheriffs to levy the goods; so that it seems he 
 had a design only to keep the execution in his pocket, to protect 
 the defendant's goods by fraud. And judgment for the plaintiff 
 by the zvhole court. * * * 
 
 This is a leading case and figures prominently in all discussions of 
 this and kindred questions. It is universally recognized as good law. 
 See Payne v. Drewe, post, p. 275, and notes to same. 
 
 In trespass de bonis asportatis by a purchaser at a constable's sale 
 
AGAINST THE PROCEEDS IN COURT. 247 
 
 against a sheriff who took the property from him on a fi. fa. against 
 the original judgment debtor in his hands before but not levied till 
 after the levy and sale by the constable judgment was rendered for 
 plaintiff and affirmed on appeal. Duncan v. M'Comber, 10 Watts, (Pa.) 
 212. Marsh v. Lawrence, 4 Cowen (N. Y.) 461, is a similar case. 
 
 A sheriff having levied three fi. fas. on a horse brought trover for 
 it against one claiming as purchaser at a sale by a constable on a 
 warrant issued by a justice of the peace and received and levied by the 
 constable after the sheriff received but before he levied his writs. Judg- 
 ment for defendant was affirmed on appeal, Smallcomb v. Cross, and 
 Payne v. Drewe, being cited with other decisions as authority. Jones 
 V. Judkins, 4 Dev. & Bat. (N. Car.) 454. 
 
 The doctrine of Smallcomb v. Cross applies only to chattels, for 
 if the judgment is a Hen the record of it is notice to everyone and the 
 land may be sold on execution to satisfy it though previously sold un- 
 der an earlier writ on a junior judgment. Kirk v. Vonberg, 34 111. 440. 
 
 2. RIGHT TO THE PROCEEDS IN COURT WHEN THE OFFICER 
 HAS LEVIED AND SOLD UNDER A JUNIOR WRIT. 
 
 SCHUYLKILL COUNTY'S APPEAL. 
 30 Pennsylvania St. 358.- (1858) 
 
 Same — Under 29 Car. II. Rule — Levy and Sale under Last Writ — Effect 
 of Levy under First — First Creditor's Right to Proceeds in Court — 
 What Constitutes a Levy — Importance of Indorsement — Aban- 
 donment — by Officer — by Creditor — Giving Indemnity. 
 
 From a decree distributing the proceeds of a sheriff's sale of 
 personal property of Peter Allison, Schuylkill County appeals. 
 Affirmed. 
 
 Appellant and John Hill are rival execution-creditors of 
 Allison. Both claim prior right to the fund in court arising from 
 the sale. Hill's execution was "Levied June 9th, 1853, on * * =^ 
 (Here follows a list of sundry articles), and all other personal 
 property not exempt by law as the property of Peter Allison. So 
 answers James Nagle, sheriff." This writ was returnable July ist. 
 On June 30th appellant's U. fa. was issued and levied by Nagle, 
 July 2nd, on goods not particularly described in the endorsement 
 of levy on Hill's writ. These goods being claimed by one Bach- 
 man, appellant indemnified the sheriff July i8th, and he then 
 advertised the sale, and on August ist sold the goods. Two days 
 before this sale Hill indemnified the sheriff, who then endorsed on 
 Hill's writ a levy describing the property levied under appellant's 
 
248 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 writ. The court below awarded Hill enough of the proceeds of 
 this sale to pay the balance due him. 
 
 Bannan, for appellant. 
 
 Graeif, E. O. Parry, and Loeser, for appellee. 
 
 The Court by Strong, /. * * * It is clear that the execution 
 of the appellants, though second in date.had the first levy upon 
 the property, the proceeds of sale of which are in dispute. It was 
 made on the 2nd of July, and Hill's not until the 30th of that 
 month. It is true, that if the endorsement upon the first writ on 
 the 9th of June stood alone, we might think otherwise. The words 
 at its close, "and all other personal property not exempt by law," 
 are large enough to embrace the goods which are claimed by Bach- 
 man, as was fully shown in Wilson, Sieger & Co.'s Appeal, 13 
 Pa. St. (i Harris) 426. They would even cover property subse- 
 quently acquired, though before the return day of the writ. But 
 a levy is a seizure, a thing done. The endorsement on the writ is 
 but evidence of it. Mere writing upon his writ an assertion of a 
 levy by the sheriff is no levy. To constitute one in England, the 
 sheriff's bailiff must make an actual seizure. True, if part of the 
 goods be seized in the name of the whole on the premises, it is a 
 good seizure of the whole, but if after the seizure the goods be left 
 ^ in the possession of the debtor, it is an abandonment, and they are 
 open to seizure by a subsequent execution-creditor ; and this, al- 
 though a a. fa., is a lien there,' as here, from the time it comes to 
 the officer's hands. In Pennsylvania, unfortunately, the same 
 strictness has not been enforced, and something like a constructive 
 seizure is tolerated. Yet even with us the sheriff must have the 
 goods within his power and control, or at least within his view. 
 If, having them so, he makes a levy upon them, if followed up 
 afterwards within a reasonable [jdo] time, by taking possession 
 in such manner as to apprise everybody of the fact of their having 
 been taken in execution, the levy is good. Wood v. Vanarsdale, 
 3 Rawle 401, 406. Applying this test, it is obvious that the levy 
 on the 9th of June was not made upon the goods claimed by Bach- 
 man. It was not followed up by taking the property into posses- 
 sion. On the contrary, the sheriff, on the i8th of June, proceeded 
 to sell the other property seized, and returned that the property 
 
AGAINST THE PROCEEDS IN COURT. 249 
 
 levied upon had in part been retained by the debtor, and the re- 
 ■ mainder thereof he had sold and applied to the payment of the 
 debt. * * * The proof is therefore overwhelming that the appel- 
 lants had the first levy. 
 
 But what then ? Assuming the priority of their levy, the ap- 
 pellants contend that they are entitled to the proceeds of sale, be- 
 cause, as they say, it is the priority of the levy, and not of the lien 
 arising from having placed the writ in the sheriff's hands, which 
 determines the title to the money. To sustain this view, we are 
 referred to McClelland v. Slingluif, 7 W. & S. 134, 42 Am. Dec. 
 224. In that case it was ruled, that if two executions be placed in 
 the hands of the sheriff, at different times, and he make a levy of 
 the defendant's personal property, and a sale upon that which came 
 to his hands last, he must appropriate the money to it, and not to 
 the first upon which he had made no levy. It must be observed, 
 however, that the case cited differs from the present, in the fact 
 that there no levy had, at any time, been made upon the first execu- 
 tion. The goods had been seized and sold upon the second, with- 
 out any action whatever upon the first. The case is not, therefore, 
 an authority for the position that, if there be a levy upon both 
 writs, the first levy shall prevail. In Wilson, Sieger & Co.'s Ap- 
 peal, cited above, the first actual levy was rhade under the second 
 execution, and yet it did not prevail over a constructive levy 
 endorsed upon the first. In Shaffner v. Gilmore, 3 W. & S. 438, 
 two writs of a. fa. had been placed in the hands of the sheriff, and 
 levies had been made ; subsequently, other personal property of the 
 debtor came into the bailiwick ; a third execution was then placed 
 in the sheriff's hands, under which he levied upon the newly-ar- 
 rived property; four days afterwards, he made a levy upon the 
 [361] same property, by virtue of the first two executions. There, 
 as here, the first levy was under the junior writ, yet the first execu- 
 tion was held entitled to the money. So, in Hutchinson v. Johnston, 
 
 1 Term Rep. 729, the first warrant and seizure were under the 
 second writ, but the proceeds of sale were held to belong to' the 
 first. Such, also, is the doctrine of Jones v. Atherton, 7 Taunt. 56, 
 
 2 Marsh. 375, 2 E. C. L. 258. It is unnecessary to pursue this 
 branch of the case farther. The authorities are uniform that it is 
 
250 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 not the first levy alone which determines the right to the proceeds 
 of the sale. 
 
 Hill, then, being primarily entitled, notwithstanding his levy 
 was after that of the appellants, it remains only to inquire whether 
 he has lost his priority by his own act, or by any act of the sheriff. 
 Undoubtedly, the advantage of priority, which the first ii. fa. has, 
 may be lost by the waiver of the creditor, or an abandonment by 
 the sheriff. When Hill's execution came to the officer's hands, it 
 became a lien upon all the personal property of Allison the debtor, 
 within the county of Schuylkill. If necessary to satisfy the debt, 
 the sheriff should have levied upon all. If all was not needed, he 
 should have seized sufficient. If enough could not be found until 
 other writs came to hand, he should have seized after discovered 
 property under his first writ. But if he failed to do so, the first 
 execution creditor was not thereby postponed, as has already been 
 shown, provided the .sheriff levied at any time before sale. His 
 delay is not an abandonment. But if he actually seize goods, and 
 afterwards deliver them up to the debtor, they are abandoned, and 
 a junior ft. fa. may take them. The first execution-creditor, in 
 such a case, must look to the sheriff, not to the property aban- 
 doned. Commonwealth v. Contner, i8 Pa. St. (6 Harris) '439. 
 And so it may be, if the officer seize certain specified articles out 
 of many, all within his power and control, as for example four 
 horses in a stable containing six, he thereby abandons the remain- 
 ing two to other creditors. In such a case the sheriff, by his levy, 
 designates the property out of which satisfaction of the universal 
 lien is claimed to be made, and perhaps, thus informs subsequent 
 execution-creditors what is affected by the lien, and what is not. 
 This seems necessary in order to prevent the use of an execution 
 as a mere cover to protect the debtor's goods. But, in the present 
 case, the sheriff neither seized the goods claimed by Bachman and 
 gave them up to the debtor, nor did he select certain articles out of 
 many in his power and contijol, and thereby impliedly relinquish 
 the others. There was, therefore, no abandonment by the sheriff. 
 
 Was there a waiver by Hill, the creditor? When he placed 
 his execution in the hands of the sheriff, he thereby instructed him 
 to make the money out of all the personal property of the debtor in 
 
AGAINST THE PROCEEDS IN COURT. 251 
 
 his bailiwiclc. Having then a legal claim upon it all, he could re- 
 linquish that claim only by some affirmative act, or by such gross 
 laches as is equivalent to a positive waiver. It does not appear 
 [362] that he knew of the existence of the goods claimed by Bach- 
 man until after the first sale was made, or that he knew they were 
 Allison's property until after the second execution had been levied, 
 nor at all, until he directed a levy to be made on his own writ, on 
 the 30th of July. Under these circumstances, his neglect to order 
 the seizure, and to indemnify the sheriff after indemnity had 
 been given by the county, was neither a positive discharge of the 
 property nor gross laches equivalent thereto. 
 
 It may seem hard, that a first execution-creditor should reap 
 the benefit of a sale mainly induced by the indemnity of a junior 
 execution-claimant, but he has the first grasp upon the property, 
 and only the property of the debtor is sold, notwithstanding the 
 bond of indemnity. That the first execution is entitled to the pro- 
 ceeds of sale in such a case, even though the indemnity is only 
 given by the holder of the second, is fully established by authority 
 It was so ruled in The Girard Bank v. Philadelphia & N. R. Co., 
 2 Miles 447, and recognized as settled law in Watmough v. Fran- 
 cis, 7 Pa. St. (7 Barr) 206. 
 
 Decree affirmed at the costs of the appellant. 
 
 Thompson, J., dissented. 
 
 This case is given you because it so clearly and accurately states 
 the generally accepted rule as to which party is entitled to the proceeds 
 of the sale where the writ hinds the property from the time it is deliv- 
 ered to the sheriff. This is the rule in New York, though the writs 
 were originally given to different officers. Lambert v. Pauldmg, 
 18 Johns.. 311. The student will observe that the rule applied in Schuyl- 
 kill County's Appeal never obtains, where the writ binds the property 
 only from the date of the levy. See Albrecht v. Long, post, 257. But the 
 decision in this case can be justified only on the ground that appellant's 
 counsel did not raise the point, which the court might therefore 
 overlook, that the levy under Hill's writ was not made till after the re- 
 turn day of the writ. For the rule is universal that no valid levy can be 
 made after the return day of the writ, even though some property is 
 seized before the return day. McDonald v. Gronefeld, 45 Mo. 28. As 
 was said by the supreme court of Pa. in a later case: "Except for the 
 purpose of detention and sale of property previously levied upon, an 
 execution after its return day is dead. An officer making levy and sale 
 after his writ has expired is a trespasser, and the purchaser acquires 
 
252 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 no title. Freeman Ex. § 106. The reseaTch of counsel has discovered 
 no case where the lien of a fieri facias, without levy, did not end with 
 the writ. How it could be otherwise is diflacult to imagine. The officer 
 can do nothing with a defunct writ but return it. No process has been 
 devised whereby goods, which had once been subject to the lien of an 
 execution, expired and returned, may be seized and sold to satisfy the 
 lost lien." Sturges's Appeal, 86 Pa. St. 413. See also Commonwelath 
 V. Magee, ante p. 167. 
 
 It may be further observed that although Hill's failure to give in- 
 demnity before was not, under the circumstances of this case, a forfei- 
 ture of whatever rights he might have, the language of the opinion and 
 the decision in 2 Miles 447, might give an erroneous impression as to f 
 the law in that respect, which is more accurately expressed in Smith'i 
 V. Osgood, post, 295. See also Dabney v. Stackhouse, 49 Miss. (1 H. & i 
 S.) .513; Branch Bank v. McCollum, 20 Ala. 280. 
 
 In other respects the rules seem to be clearly expressed and in ac- 
 cord with the law in other states. 
 
 A direction by the creditor to the sheriff to levy on certain property 
 is not an abandonment of his lien on the remainder, and the sheriff 
 who has levied on that part may at any time before the return-day levy 
 on and inventory other property, though the defendant has in the mean- 
 time assigned for the benefit of creditors, the writ being a lien from the 
 date of its delivery. Moses v. Thomas, 26 N. J. L. 124. 
 
 3. RIGHT TO FOLLOW THE PROCEEDS AFTER WRONGFUL PAY- 
 MENT TO A JUNIOR CREDITOR. I ^ 
 
 FIELD V. MACULLAR.7,= 
 20 Illinois App. 392. (1886) 
 
 Same — Under 29 Car. II. Rule — Creditor's Right to Follow the Proceeds 
 into the Hands of a Prior Creditor Whose Lien has Failed — Neces- 
 sity of Levy under Subsequent Writ — Necessity of Indorsement. 
 
 Bill in chancery by Addison Macullar et al., partners, against 
 Peter W. Field et al., partners, and Eric E. Anderson, to recover 
 money received by Field et al. arising from execution sale of prop- 
 erty of said Anderson. From decree for complainants defendants 
 bring error. AfHrmed. 
 
 Field et al. recovered judginent against Anderson and the 
 same day had execution issued and the sheriff immediately levied 
 it on Anderson's stock of goods and store fixtures. Macullar 
 et al. recovered judgment the next day, (Oct. 4, '79), and imme- 
 diately had execution thereon placed in the hands of said sheriff, 
 who promised to levy it but made no endorsement on the writ. 
 Anderson then moved (Oct. nth) to vacate the Field judgment. 
 
AGAINST THE PROCEEDS PAID OVER. 253 
 
 but the sheriff proceeded to sale of the property (Oct. 13th), and 
 against protests by attorney for Macullar et al. that the Field 
 judgment was fraudulent, and as to them invalid, paid the pro- 
 ceeds to Field et al. in part satisfaction of their judgment and re- 
 turned the Macullar execution wholly unsatisfied. After said sale 
 and payment the Field judgment was reversed by this court and 
 the case remanded for a new trial. After this Macullar et al. de- 
 manded said money from Field et al, and payment being refused 
 filed this bill. 
 
 Lyman & Jackson, for complainants. 
 Jaw.es H. Fairchild, for defendants. 
 
 The Court by Bailey, /. * * * -p^e principal question in the 
 case is, whether the complainants obtained, by means of their exe- 
 cution, a first and paramount lien on the goods of Anderson levied 
 upon by the sheriff, and upon the proceeds of said goods after 
 the sale. That said execution became a lien on said property 
 from the time of its delivery to the sheriff, is indisputable. * * * 
 It is not material that there was no formal levy of the com- 
 plainant's execution. The sheriff had in his hands a former exe- 
 cution against Anderson, apparently valid, in favor of the defend- 
 ants, and by virtue of that execution he had levied upon said 
 property and taken the same into his possession. In Leach v. 
 Pine, 41 111. 65, it was held that where a sheriff has in his hands 
 an execution, and levies upon personal property and reduces it 
 to possession, it is then in the custody of the law, and it is not 
 essential to the lien of other executions in his hands or subse- 
 quently received, that they should be formally levied; that the 
 execution first coming to hand authorizes the seizure of the prop- 
 erty, which creates the levy, and while it remains in his possession 
 he is unable to seize it again. 
 
 Upon the execution sale the liens of the two executions im- 
 mediately attached to the fund created by the sale, with the same 
 rights to priority which existed before the property was sold. 
 See Hart v. Wingart, 83 111. 282, and authorities cited. It can 
 not be doubted that the effect of the reversal of the defendants' 
 judgment was to extinguish, their lien. If the property had re- 
 mained up to that time in the hands of the sheriff, it could not 
 
254 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 afterward have been sold under their execution. The property 
 having been sold and the proceeds having been paid over to them, 
 they were no longer entitled, [3(>6] as against Anderson, to retain 
 the money, but as between them, it was defendants' duty to repay 
 it to him, and he could have recovered it in an action for money 
 had and received. Clark v. Pinney, 6 Cow. (N. Y.) 298; Maghee 
 V. Kellogg, 24 Wend. (N. Y.) 32; Green v. Stone, 1 Harris & 
 John. (Md.) 405; Freeman on Executions, § 346, and authorities 
 cited. 
 
 The defendants' lien, then, having been extinguished by the 
 reversal of their judgment, and the complainants' lien having re- 
 mained in full force, the complainants' right to the fund produced 
 by the sale became paramount, entitling them to have the whole 
 of said fund paid to them in satisfaction of their judgment. Said 
 fund belonged to them, and the defendants having obtained pos- 
 session of it with notice of the complainants' rights, are properly 
 charged as trustees, holding said fund for the benefit of the com- 
 plainants. We are of the opinion that there was no error in the 
 
 decree, and it will therefore be affirmed. 
 
 Decree affirmed. 
 The only proper practice is to indorse the levy on the writ or on 
 some pajter annexed thereto, and in an action against a sheriff for 
 misappropriating money made on plaintiff's fl. fa. the supreme court 
 of Pennsylvania held that the sheriff should not be permitted in de- 
 fense to show that he had levied upon and sold the property on a previ- 
 ous writ which had no levy indorsed on it, nor to put in evidence a 
 written levy never attached to such writ and not returned with it 
 but retained in the possession of the sheriff till the trial of the action 
 against him. M'Clelland v. Slin^luffi, 7 W. & S. 134, 42 Am. Dec. 224. 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 255 
 
 4. RIGHT TO RECOVER OF THE OFFICER AND HIS SURETIES. 
 
 A. For Failure to Execute the Writ. 
 
 a. BEFORE THE PROPERTY WAS LEVIED ON UNDER OTHER 
 WRITS. 
 
 KNOX V. WEBSTER. 
 i8 Wisconsin 406, 86 Am. Dec- 779. (1864) 
 
 Same — Modern American Rule as to When Lien Attaches — First Levy 
 
 under Second Writ — Sale under Both — Who Entitled 
 
 to Proceeds in Court — Right to Priority 
 
 by Discovering Property. 
 
 Action by Thomas M. Knox against Webster as sheriff of 
 Milwaukee county, for failure to levy plaintiff's execution before 
 another subsequently placed in his hands. From judgment for 
 plaintiff defendant appeals. Affirmed. The main defense was 
 that the other execution creditor found and showed the sheriff the 
 property on which to levy and was entitled to priority for his dili- 
 gence. 
 
 Butler & Cottrill, for appellant. 
 
 Knox, in person. 
 
 The Court by Dixon, C.J. "Personal property shall be bound 
 from the time of its seizure on execution." R. S., ch. 134, § 18. 
 Before seizure there is no lien — nothing by which the rights of 
 different execution creditors, whether senior or junior, can attach. 
 The lien takes effect from the date of the levy and by virtue there- 
 of, and of course is confined to the execution levied, and can have 
 relation to no other. Such lien is prior and superior to that of 
 every execution subsequently levied, and consequently not liable 
 to be defeated by such subsequent levy, though made upon a senior 
 execution. This point, if not decided, was strongly intimated in 
 Russell V. Lawton,, 14 Wis. 209. It follows that the court was 
 right in rejecting the record and proceedings upon the motion to 
 have the money made on Cooper's execution applied on that of the 
 plaintiff. The court had no power to make such application, and 
 was bound to deny the motion. The plaintiff having wholly mis- 
 taken his remedy, the decision upon the motion was no bar to this 
 suit, and that was the only purpose for which the record and pro- 
 ceedings were offered. 
 
256 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 As to the duty of the sheriff in making the levy, we are [410] 
 satisfied he should have levied the senior execution first. The de- 
 cision in Russell v. Lawton proceeded on this supposition in all 
 cases where the several executions are in the hands' of the same 
 officer. The statute, § 15, requires the sheriff, under the sanction 
 of his official oath, to indorse upon every execution the year, 
 month, day and hour of the day when he received the same. No 
 reason is perceived for this, unless it be to furnish unequivocal and 
 satisfactory evidence upon which to deterrnine disputed questions 
 of priority and preference among different execution creditors of 
 the same debtor, and to enable the sheriff to guard against mis- 
 takes. He is a public officer, of whom the law requires the strict- 
 est impartiality between those who are obliged to have his services, 
 and this impartiality cannot be enforced except upon the rule that 
 he must, at his peril, levy and satisfy executions according to their 
 seniority in his hands. Once allow it to be a race of diligence be- 
 tween the different creditors in finding and pointing out the prop- 
 erty of the debtor, and what a door to partiality, fraud and strife 
 would be opened ! The sheriff might neglect inquiry, or be will- 
 fully ignorant, for the sake of favoring one or oppressing another 
 creditor, and the whole controversy would be thrown upon the un- 
 certain testimony of interested and suspicious witnesses. We do 
 not doubt, therefore, that it was the intention of the legislature, 
 as it is the course of reason, that executions should be levied ac- 
 cording to seniority, and that the sheriff in this case was not jiisti- 
 fied in levying the junior execution first because the creditor in 
 that execution had been more successful than himself in findiiig 
 the property of the execution debtor. * * * {411^ * * * 
 
 Judgment affirmed. 
 
 A junior creditor learning that the sheriff had no special orders to 
 levy but only to summon a garnishee on the senior fi. fa., ordered him 
 to levy his fl. fa. on certain corn. Sheriff levied both writs at same 
 time. The senior writ held entitled to priority, because it is the sher- 
 iff's duty to levy on any property without special orders. Stuarts v. 
 Reynolds, 4 Harrington (Del.) 112. See also Tomlinson v. Rowe. 
 Lator's Sup. to Hill & Denio (N. Y.) 410. 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 257 
 
 ALBRECHT v. LONG. 
 
 2S Minnesota 163. (1878) 
 
 Same — Under Modern American Rule — First Levy under Last Writ — 
 
 Sale under All — Proceeds Applied on First — Liability of Officer — 
 
 Review of Statutes Fixing Time When Lien Attaclies — Purpose 
 
 of Statutes — How Far Sheriff aod Deputy are One Person 
 
 — When Sheriff Liable for Failure to Serve First — 
 
 Action by Ernest Albrecht et al. against Seth W. Long et al. 
 on official bond. From judgment for defendants plaintiff appeals. 
 Reversed. 
 
 Lewis Brownell, for plaintiffs. 
 
 B. S. Lewis, for defendants. 
 
 The Court by GilUllan, CJ. The defendant Long was sheriff 
 of the County of Waseca, and Stevenson was his deputy. Execu- 
 tions issued against the property of Sherwins were delivered as 
 follows : One in favor of Charles Shedd, to the sheriff himself, 
 at 10 :30 o'clock p. m. of March 19, 1877 ; one in favor of Chancy 
 Hardin et al., and another in favor of, J. S. Ricker et al., to the 
 sheriff in person, at 2 o'clock a. m. of March 20; and one in favor 
 of these plaintiffs, to the deputy, at 6 o'clock a. m. of the same day. 
 The deputy levied this last execution at half-past 6 a. m. of the / 
 same day, and took possession of the property. About half an' 
 hour thereafter, the sheriff levied the three executions delivered 
 to him in person, upon the same property, and, upon his request, 
 the deputy delivered to him the plaintiffs' execution, and the pos- 
 session of the property. The sheriff advertised the property for 
 sale under several executions, not naming either of them, and sold 
 the property, and applied the proceeds, after deducting his fees, 
 to the payment in full of the Shedd execution, and the remainder 
 upon the execution of Hardin et al., and returned the plaintiffs' 
 wholly unsatisfied, wliereupon plaintiffs bring suit against the 
 sheriff and the sureties in his official bond. 
 
 The question presented is, whether the levy of an execution 
 gives the execution creditor a lien upon the property, which en- 
 titles him to priority over other executions in the hands of the 
 same officer against the same debtor, delivered to the officer before, 
 but not levied till after, his? For these executions are all to be 
 
 17 
 
258 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 taken as delivered to the sheriff. The deputy is not an officer hav- 
 ing a separate official existence from that of the sheriff. He is an 
 officer of the sheriff's, whose powers and duties, so far as they 
 affect the public, it is true, are- defined by law. But he holds the 
 office -at the pleasure of the sheriff, is appointed and removable by 
 him, and civilly responsible to him, and not to the parties whose 
 writs come into his hands. He must act in the name of the sher- 
 iff, and not in his own name. All his acts are, in law, the acts of 
 the sheriff; and the responsibility, civilly, for such acts done [171] 
 within his authority, is that of the sheriff. Our statutes, do not, 
 as do the statutes of some of the states, alter in any way, the status 
 of the deputy. 
 
 It is the duty of the sheriff, upon a writ coming into his 
 hands, to use due diligence in the execution of it. It attaches to 
 the writs as they come into his hands, and it follows that it is his 
 duty to execute first those which are first delivered to him. Upon 
 several executions in favor of different creditors against the same 
 debtor, it is his duty to the creditor in the first delivered, to execute 
 that first ; and to the creditor in the second, to execute that second ; 
 and so through them all. This is the duty he owes to the several 
 creditors. But the rights of the creditors, as against each other, 
 are not necessarily controlled by it. 
 
 At the common law, an execution bound the goods of the 
 debtor from the time of the teste, even though they were subse- 
 quently transferred to a • bona ftde purchaser. The statute 29 
 Charles II., c. 3, § 16, provided that execution "shall bind the 
 property of the goods against which such writ of execution is sued 
 out, but from the time that such writ shall be delivered to the 
 sheriff, under-sheriff or coroner, to be executed." Under the 
 •common-law rule, the execution operated as a lien in favor of the 
 creditor for the satisfaction of his debt, from the time of the teste, 
 and, under the statute, it operated as such lien from the time of 
 its delivery to be executed. And the latter would continue to be 
 the rule, were it not for the provisions of the statute of this state. 
 Gen. St. c. 66, § 269, enacts that "until a levy, property not subject 
 to the lien of the judgment is not affected by the execution." So 
 that the creditor acquires a lien on the property, by virtue of his 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 259 
 
 execution, only from the levy. The property is not aflfected by 
 the teste, nor the delivery to the sheriff. The levy fixes the rights 
 of the creditor as to the specific property. It is argued that the 
 statute 29 Charles II., and the General Statutes were passed only 
 for the protection of bona Me purchasers, and therefore do not 
 affect the rights of [J/^] execution creditors as against each other. 
 If this were so, their rights would be controlled by the common- 
 law rule, that the execution binds the goods from its teste, and the 
 execution last delivered and levied might take precedence of all 
 the others, because of the priority in its teste. We do not think 
 the statute was intended to operate only as between the execution 
 creditor and a bona fide purchaser, as claimed, but it was intended 
 to define absolutely, as its language indicates, the rights of the 
 creditor as to the specific property, and as between him and all 
 others. 
 
 The execution first levied, then, has the first lien on the prop- 
 erty, though there may be others in the hands of the sheriff, which 
 were delivered to him before the one levied. Russell v. Lawton, 
 14 Wis. 202 ; Knox v. Webster, i8 Wis. 406. The creditors in 
 executions afterwards levied cannot claim to be paid out of the 
 property, until the one first levied is satisfied. This would be so 
 in a contest between the creditors, and it must be so in a dispute 
 between the creditor having the first lien by levy, and the sheriff. 
 The remedy of the creditor in the execution first delivered is 
 against the sheriff. If the latter, through negligence, omit to levy 
 the first execution till a second has been levied, and loss thereby 
 accrues to the first execution creditor, an action will undoubtedly 
 lie. 
 
 It does not follow, however, from the rule of law that a sheriff 
 and his deputies are regarded as one officer, that where several 
 executions against the same debtor are placed, some in the hands 
 of the sheriff in person, and others in the hands of his deputy, and 
 in consequence thereof, and without actual negligence of the sher- 
 iff or deputy holding the execution first delivered, a subsequent 
 execution is first levied, that the sheriff is liable to the creditor in 
 the first execution. When it comes to a question of diligence, the 
 law recognizes the fact that the sheriff and his deputy are different 
 
260 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 persons, though in theory one officer. And as it does not require 
 impossibilities, it regards the question of dihgence in view of [i/j] 
 that fact, and of what may naturally happen in consequence of it. 
 Russell V. Lawton, 14 Wis. 202 ; Whitney v. Butterfieldj 13 Cal. 
 
 335- . , J J 
 
 Order reversed, and new trial ordered. 
 
 Same case, 27 Minnesota 81, 6 N. W. 420. (1880) 
 Same — Agreements between Sheriff and Deputy — Who Bound — Breach 
 
 by Deputy. 
 
 After the next trial defendants appealed from judgment for 
 plaintiffs, appearing by same counsel as before. Affirmed. 
 
 The Court by Gilfallan, C.J. * * *There was evidence of a 
 previous arrangement between the sheriff and deputy to the effect 
 that the latter should not serve any process issuing from the dis- 
 trict c'ourt ; that all such process should be served by the sheriff in 
 person. Defendants claim that, had this arrangement been acted 
 on, plaintiffs' [5'j] execution would have come into the hands of 
 the sheriff, personally, before service, and that he would have 
 served the executions in their proper order; that the deputy was 
 induced, by the attorney's 'false representations, to disregard the 
 arrangement, and to receive, and at once, without consulting the 
 sheriff, to levy plaintiff's execution. Such an arrangement, even 
 if it might bind the sheriff and deputy, could be of no effect as to 
 third persons. A deputy sheriff, it is true, is an officer of the 
 sheriff, appointed and removable by him, civilly responsible to him, 
 and acting only in his name. But the deputy's powers and duties, 
 so far as the public are concerned, are fixed by law, and cannot be 
 varied by any agreement between him and the sheriff. Those 
 powers and duties are vested in and imposed on him, 'not for the 
 convenience of the sheriff, but of the public. Notwithstanding the 
 arrangement, therefore, it was the duty of the deputy to receive 
 the execution, and with all reasonable diligence to execute it. 
 That the deputy was, by false statements, induced to do his duty 
 in receiving the execution, and to perform his duty to levy it at 
 ' o'nce, without delay, is not in law a fraud. Deceit, not followed 
 by what the law recognizes as a wrong, is not fraud. * * * 
 
 Judgment affirmed. 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 261 
 
 In Whitney v. Butterfield, above cited, a sheriff was sued for fail- 
 ure to levy before 1 a. m. Monday, a writ of attachment handed him 
 between 9 and 10 p. m. Sunday, by reason of which delay a later attach- 
 ment was first levied by one of his deputies in favor of another creditor. 
 The delay of an hour at midnight, after he could legally execute the 
 writ, was not sufiicient ground for action, it appearing that the sheriff 
 had no notice of the other writ or warning that great haste was neces- 
 sary. The court discuss at length the degree of diligence required of 
 such officers. Compare Commonwealth v. Magee ante p. 167, and Rus- 
 sell v. Lawton below. 
 
 An officer received an execution at 4 p. m. with request to execute 
 it at once by taking a designated stock of goods in a store in a town 
 five miles distant, accessible by street car, through railway, or horse 
 and carriage, and at the same time was warned that the Judgment 
 debtor would soon assign and was believed to be at that time making 
 out the papers. The sheriff promised to attend to it that night if he 
 had to gc himself. He missed the train that night by reason of a 
 recent change in time of departure and decided to wait till the next 
 day. He went on the train at 10 a m. the next day, and found the 
 store locked, an assignment having been made and filed between 11 and 
 12 a. m. that day. Afterward he returned the writ unsatisfied for want 
 of goods and was held liable in an action by the creditor for a breach 
 of official duty. Guiterman Brothers v. Sharvey, 46 Minn. 183, 24 Am. 
 St. 218, 48 N. W. 780. 
 
 RUSSELL V. LAWTON. 
 14 Wisconsin 202, 80 Am. Dec. 769. (1861) 
 
 Same — Levy and Payment on Last Writ — How Far Sheriff and Deputy 
 One Person — Notice to Deputy, Notice to Sheriff. 
 
 Action against sheriff. From judgment for plaintiff defend- 
 ant appeals. Reversed. 
 
 Mat. H. Carpenter, for appellant. 
 
 /. H. Knowlton and Rockwell &■ Converse, for appellees. 
 
 The Court by Cole, /. * * * On the 9th day of February, 
 1859, the appellant as sheriff of Rock county, had delivered to him 
 an execution in favor of the Bank of Beloit against the Racine and 
 Mississippi Railroad Company, and by direction of the judgment 
 creditors, levied the same upon 'eleven hundred and ten dollars 
 coin, the money of the railroad company, and paid it over as 
 money made upon the execution. On the preceding 4th day of 
 February, an execution in favor of the respondent and against the 
 same defendants was delivered to Sydney Wright, a deputy of the 
 appellant, which was returned unsatisfied for the reason that the 
 
262 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 officer could find no property upon which to levy. The respond-, 
 ent has brought this action to recover the amount of the execution 
 delivered to Wright, insisting that because it was placed in the 
 hands of the deputy before the junior execution was delivered to 
 the sheriff, it should first be satisfied, and that the sheriff was 
 guilty of misconduct in not thus applying the money that came to 
 his hands, instead of paying it over to the bank. At the same time 
 it is conceded that the sheriff acted in perfect good faith in the 
 matter, and that when he levied upon and paid oz'er the money to 
 the hank, he had no notice whatever that his deputy held any exe- 
 cution against the same debtor. In view of these facts, upon what 
 principle is it sought to charge the appellant in this action ? It is 
 this. A delivery of an execution [207] to a deputy sheriff is said 
 in legal effect to be a delivery to the sheriff himself, since, in con- 
 templation of law, all the deputies of the sheriff are but one officer, 
 being all servants of the same master, and that, therefore, the sher- 
 iff must be held chargeable with constructive notice of the prior 
 execution in the hands of his deputy. And upon this fiction of 
 the law the whole case hinges. 
 
 It is undoubtedly true that for many purposes a sheriff and 
 his deputies are regarded as one officer, in the sense that an official 
 act of the deputy is deemed the act of the sheriff, and. the sheriff 
 is held responsible for such act as his own, though he may have 
 had no personal knowledge of the matter, and been individually 
 guilty of no wrong. All processes are directed to the sheriff as 
 such, who is required to do the thing therein commanded to be 
 done; and the sheriff is responsible to the world for all breaches 
 of duty or official misconduct on the part of any of his deputies. 
 For this reason an action for a breach of duty of the office of 
 sheriff must be brought against the high sheriff, though the breach 
 was by the default of the under sheriff. Cameron v. Reynolds, 
 I Cowper (Eng.) 403. In this sense the sheriff and his deputies 
 may be said to constitute one officer. But still the deputies of a 
 sheriff, in relation to each other, must often be considered as sev- 
 eral officers, with distinct rights, and acting with distinct liabilities. 
 Odiorne v. Colley, 2 N. H. 66; Vinton v. Bradford, 13 Mass. 114; 
 Thompson v. Marsh, 14 Id., 269; Bagley v. White, 21 Mass. (4 
 
LIABTt.ITY OF THE OFFICER AND HIS SURETIES. 263 
 
 Pick.) 395. * * * [208] * * * Take a case suggested on the 
 argument, and which will occur to any one reflecting on the sub- 
 ject. An execution against A is put into the hands of a deputy, 
 who knows of no property belonging to A to satisfy the same. 
 Another deputy has information of property possessed by A suffi- 
 cient to satisfy the execution, but has no knowledge that an exe- 
 cution is out against him. The sheriff has no knowledge of any 
 execution against A, or of any property belonging to him. Under 
 these circumstances, is the sheriff to be charged with constructive 
 notice of the execution in the hands of one deputy, and of the in- 
 formation possessed by the other in respect to property belonging 
 to the debtor, and thus held liable for a breach of duty in not mak- 
 ing the money on an execution which he never saw ? To contend ' 
 for such a proposition would seem little else than the most glaring / 
 absurdity; and yet we see no escape from such a result, if the^ 
 maxim that the sheriff and his deputies are to be regarded as on^ 
 person, is to be accepted without limitation. * * * V^io'] 
 
 It follows from these views, that the judgment of the circuit 
 court must be reversed, and a new trial ordered. 
 
 Reversed. 
 Compare Ferguson v. Williams, 3 B. Mon. (Ky.) 302. 
 
 b. BEFORE THE RETURN DAY. 
 
 BURK V. CAMPBELL. 
 IS Johnson (New York) 456. (1818) 
 
 Liability of Officer for Failure to Return Writ by Return Day — Neces- 
 sity of Special Order to Return — Creditor's Election of Remedies. 
 
 Case by Burk against Campbell, sheriff of Franklin county, 
 for not executing or returning a fi. fa. From judgment for de- 
 fendant plaintiff brings error. Reversed. 
 
 The Court by Thompson, Ch. J. * * * The only plea inter- 
 posed by the defendant .was, that he had not been required, by any 
 rule of court, to return the said writ, according to the course and 
 practice of the court. To this plea there was a general demurrer, 
 upon which the court gave judgment for the defendant. 
 
 The judgment was erroneous. There can be no doubt that an 
 action will lie against a sheriff, for neglect of duty, in not returning 
 
264 CHARACTER OF THE CREDlTOR''s LIEN OR RIGHT. 
 
 an execution delivered to him. The declaration in the court below 
 set forth, with all necessary certainty, the judgment and execution; 
 the delivery of the same to the sheriff, before the return day ; and 
 that the defendant in the execution had sufficient goods and chat- 
 tels, lands and tenements, within the county, whereof the money, 
 required by the execution to be raised, might have been levied and 
 collected, but which the defendant neglected and refused to do. 
 It is no answer for the sheriff to allege that he had not been ruled 
 to return the execution. This he was bound to do, without being 
 ruled. The plaintiff had his election to proceed either way; and. 
 the sheriff cannot avail himself of his own neglect of duty to defeat 
 the plaintiff's action. This is a principle fully recognized by this 
 court in Hinman v. Brees, 13 Johns. 529. Our statute concerning 
 sheriffs recognizes such an action against the officer. It declares 
 that if any sheriff, or other officer, shall not make due return to any 
 writ delivered to him to be executed, he shall not only be [458] li- 
 able to attachment, or amercement, but, also, to an action on the 
 case, for damages, at the suit of the party aggrieved, i N. R. L. 
 423. The judgment of the court below must be reversed. 
 
 Judgment reversed. 
 
 LEDYARD v. JONES. 
 7 New York (3 Selden) SSO. (1852) 
 
 Liability of Officer for Failure to IVIake Amount of Execution Given 
 Him for Service — IVIeasure of Damages — Defenses. 
 
 Action by Ledyard against Jones as sheriff for failure to 
 return an execution. From judgment for plaintiff defendant 
 brings error. Affirmed. 
 
 N. B. Blunt, for appellant. 
 
 G. R. J. Bowdoin, for appellee. 
 
 Watson, J. There is but a single point in this case 
 which the court is called upon to deside, and that is, as to 
 the amount of damages the^ respondent is entitled to recover in this 
 action. The verdict finds that the appellant did not levy the execu- 
 tion placed in his hands : that he made a false return upon it : that 
 he did not return it at the expiration of sixty days : and it was 
 admitted on the trial that the defendant in the execution had both 
 real and personal property out of which the execution might have 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 265 
 
 been satisfied. The amount of the execution was $500.49, and the 
 jury found a verdict of $200. This question has been repeatedly- 
 passed upon in the supreme court, and I regret that the decisions 
 are conflicting. In Patterson v. Westervelt, 17 Wend. 543, 
 where it was shown that the judgment debtor had abundant means 
 to satisfy the execution, the court held, that the plaintiff sustained 
 damages to the whole amount of the judgment; and that having 
 been kept out of his money by the wrongful act of the officer in not 
 executing and returning the process according to its commands, 
 the debt as proved by the judgment constituted [552] the true 
 measure of damages. In the case of The Bank of Rome v. Cur- 
 tiss, I Hill, 275, the court held that the sheriff was prima facie 
 liable for the whole amount due, and that it was no answer to say 
 that the defendants in H. fa. were still able to pay. This doctrine 
 was again laid down by the court in the case of Pardee v. Robert- 
 son,. 6 Hill, 550, together with another upon which the appellant 
 has made a point, and that is, that the respondent might recover 
 the full amount of the judgment without averring special damages 
 in his declaration. All of these cases, as well as Weld v. Bartlet, 
 10 Mass. 470, 474, lay it down with this qualification, that the debt 
 is prima facie the true measure of damages, the sheriff being at 
 liberty to mitigate the amount by showing affirmatively that the 
 whole sum could not have been collected if due diligence had been 
 exercised in executing the process. .In the case of Stevens Y.Rowe, 
 3 Denio, 327, the court held an entirely different doctrine. They 
 held that the plaintiff could not show that the judgment debtor 
 had real estate out of which the ft. fa. might have been satisfied 
 unless expressly averred in the declaration, and also that the sheriff 
 might mitigate the amount, not simply by showing his inability to 
 collect the money, but by proof that the debt was still safe and col- 
 lectible. I confess I am unable to see the justice of the rule laid 
 down in the case of Stevens v. Rowe, and if it is good law, the stat- 
 ute which gives the plaintiff a right to recover damages against a 
 sheriff who neglects to execute process delivered to him, is a mere 
 nullity. It in truth affords him no remedy whatever, and allows 
 an unfaithful and defaulting officer to take advantage of his own 
 wrong, a privilege that the law accords to no other person. Ac- 
 
266 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 cording to this construction, if the officer is sued for a neglect of 
 duty, he can say, the defendant in the execution had no property 
 out of which he could collect the money, and that it is conceded is 
 a good defense, or he can say he has property out of which you can 
 still collect it, and therefore nothing but nominal damages can be 
 recovered against me, which can only be the damages the plaintiff 
 has sustained by the delay in collecting the money, simply the 
 [553] interest upon the interest of the money due when 
 it ought to have been collected. To such a doctrine I 
 can never yield my assent, for a plaintiff, if this is tol- 
 erated, might never be able to collect his debt. The sec- 
 ond execution issued upon the same judgment would admit 
 of the same defense, and so on, as often as they might be issued, 
 'provided the judgment debtor did not in the meantime get rid of 
 his property. The rule laid down by the court in the cases first 
 cited, is by far the most salutary, and to my mind a just and fair 
 exposition of the statute giving a remedy against defaulting offi- 
 cers. * * * [554] * * * The judgment of the supreme court 
 should be affirmed. 
 
 Ruggles, Ch. J. and Jewett, Johnson and Welles, JJ., con- 
 curred in the opinion of Judge Watson. 
 
 Gardiner and Morse, J J., dissented, but wrote no opinion. 
 
 Judgment affirmed. 
 See also Chaffln v. Crutch er, 2 Sneed (Tenn.) 360; Taylor v. Han- 
 cock, 19 La. An. 466. This is the better view. In the cases to the con- 
 trary, like Colyer v. Higgins, -post, and Commonwealth v. Magee, ante, 
 the question seems to be disposed of without much consideration and 
 without being argued by counsel. In a later Pennsylvania case a con- 
 stable was sued for releasing property levied on and judgment ren- 
 dered against him for the amount of the execution, which the supreme 
 court affirmed, saying: "The measure of damages is not always the 
 amount of the execution but the value of the property levied on when 
 it does not equal the amount claimed in the execution. This furnishes 
 the true rule. But the presumption here is that the value of the goods 
 was at least equal to the amount claimed. Corson v. Hunt, 14 Pa. St. 
 510, 53 Am. Dec. 568. "What the sheriff could have. made for the plaint- 
 iff, by a proper discharge of his duty, is the just and reasonable, as 
 well as the legal, standard of his liability." Commonwealth v. Contner, 
 18 Pa. St. 439. 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 267 
 
 C. FOR FAILURE TO COMPLETE THE EXECUTION OF THE 
 PROCESS AFTER THE RETURN DAY AND THE EXPIRATION 
 OF THE officer's TERM. - 
 
 COLYER V. HIGGINS. 
 62 Kentucky (l Duvall) 6, 85 Am. Dec. 601. (1863) 
 Powers and Duties of Officer After His Term of Office Expires — Lia- 
 bility of Sureties to Old and New Officer — Character 
 of Ventitioni Exponas. 
 
 A. J. James, for appellant. 
 
 C. Bacheller, for appellees. 
 
 The Court by Bullett, J. This is an action against Colyer, the 
 sheriff of Rockcastle county, and his sureties, upon an official bond 
 executed on the 3d of January, 1853, to recover the amount of an 
 execution placed in his hands, and thirty per cent damages for his 
 failure to return the same for thirty days after the return day 
 thereof. A judgment was rendered accordingly against the de- 
 fendants, from which they appeal. 
 
 In our opinion, the plaintiffs have not shown a right to main- 
 tain an action upon said bond. 
 
 The petition states, thiat, in the year 1852, an execution in favor 
 of the plaintiffs, against one Kietley, was placed in the hands of 
 said Colyer, sheriff of said county, and was levied by him on some 
 property; that afterward, on the 24th of November, 1852, a writ of 
 venditioni exponas was issued thereon, returnable the fourth 
 Monday of January, 1853, and "was also in its lifetime [7] 
 placed in the hands of said Colyer while sheriff as aforesaid ;" and 
 that he failed to return the same until the 25th of April, 1853. 
 
 Under the constitution of the state, the ofHce of each sheriff 
 expired on the first Monday in January, 1853, or as soon thereafter 
 as his successor qualified. Art. 6, § 4. The facts before 
 mentioned authorize the assumption that Colyer was elected and 
 qualified for two terms, the first of which expired in January, 
 
 1853- 
 
 It does not distinctly appear, nor does it seem to be material, 
 whether the writ of venditioni exponas was delivered to Colyer 
 before or after the expiration of his first term. That writ gives 
 no new authority tO the sheriff. It merely commands him to per- 
 form his duty under the original writ. According to the settled 
 
268 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 principles of the common law, he who begins the execution of a 
 writ of fieri facias must end it. A sheriff who levies upon prop- 
 erty may sell it after the return day and after returning the execu- 
 tion, without a writ of venditioni exponas, and after he has gone 
 out of office; and it is his duty to do so. Cox v. Joiner, 4 Bibb 
 (Ky.) 94; Wolford v. Phelps, 2 J. J. Marsh. (Ky.) 31 ; Rogers v. 
 Darnahy, 4 B. Mon. (Ky.) 238, 241 ; Irzvin v. Picket, 3.Bibb (Ky.) 
 343 ; LoUand v. Eiving, 5 Litt. 42 ; Neilson v. Churchill, 5 Dana 
 (Ky.) 333; Spang v. Commonwealth, 12 Pa. St. 358, and cases 
 cited. And if he sells property he must convey it, though he may 
 have gone out of office. Allen v. Trimble, 4 Bibb, 21 ; Trimble v. 
 Breckenridge, lb., 479. These principles, so far as they apply to 
 the question under consideration, do not appear to have been 
 changed by statute. 
 
 It is clear, therefore, that if Colyer had gone out of office on 
 the first Monday in January, 1853, it would have been his duty to 
 execute the writ of venditioni exponas, whether it came to his 
 hands before or after the expiration of his term ; and that his sure- 
 ties (for his first term) would have been liable for his failure to do 
 so. It is equally clear, that if he had gone into office, for the first 
 time, in January, 1853, i^ would have been the duty of his prede- 
 cessor, and not his duty, to execute the writ ; and that his sureties 
 in the bond sued upon would not have been liable for his failure to 
 do so. It is evident, therefore, [8] that the duty of executing 
 said writ was devolved upon him by his first, and not by his second 
 term of office ; and that the bond sued upon, which relates only to 
 his second term, did not bind either him or his sureties for the per- 
 formance of that duty, which appertained to his first term. 
 
 But the appellees have a right, independently of the bond, to 
 recover nominal damages from Colyer for failing to return the 
 writ as required by law ; and this is the only relief to which their 
 petition shows they are entitled. 
 
 Upon other points argued by counsel we need not express an 
 opinion. The judgment is reversed, and the cause remanded, with 
 directions to dismiss the petition against the sureties, and for fur- 
 ther proceedings against Colyer not inconsistent with this opinion. 
 
 Reversed. 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 269 
 
 B. For the Value of Property Taken Under the Writ and Surrend- 
 ered, Lost, or Destroyed. 
 
 HARTLEIB v. McLANE. 
 44 Pennsylvania St. 510, 84 Am. Dec. 464. (1863) 
 
 Sheriffs — Degree of Care Required of Them in Keeping Property — Lia- 
 bility for Property Stolen from Them — Distinction 
 Between Mesne and Final Process. 
 
 Case by Mathias Hartleib against John W. McLane as sheriff 
 of Erie county for value of goods levied on under plaintiff's fi. fa. 
 and stolen between the day of levy and the day of sale out of a 
 store in which the goods were seized, and of which the sheriff had 
 kept possession. From judgment for defendant plaintiff brings 
 error. Reversed. 
 
 /. C. & F. F. Marshall, for plaintiff. 
 
 Benjamin Grant & William L. Galbraith, for defendant. 
 
 The Court by Thompson, J. There is but a single point of in- 
 quiry in this case; that involves the question how far a sheriff is 
 liable for the safe custody of goods taken in execution by him, and 
 the degree of care to be observed, whether of an ordinary bailee for 
 hire, or a common carrier or innkeeper, so as to raise a responsibil- 
 ity for loss by theft. * * * IS^^] In Wheeler v. Havibright, 9 S. 
 & R. (Pa.) 390, although the action was for an escape, yet the rea- 
 son for liability was rested upon general principles of public policy. 
 There the sheriff had made a return of non est inventus to a ca. sa., 
 but before the return his deputy had arrested the defendant on 
 another writ. Under these circumstances the sheriff was holden 
 as for an escape on the first writ. * * * 
 
 Why should a sheriff, having in custody the person of a de- 
 fendant as a satisfaction of the judgment on which his writ is 
 founded, on principle, stand on different footing from that on 
 which he would if he had the custody of the defendant's property 
 for the same purpose ? It is not easy to see the distinction, and a 
 more difficult task would be, to point out where the argument, 
 good in the one case, is defective in the other. The proposition is, 
 that authority settles, that ordinary care is not sufficient in the one 
 case; but inasmuch as direct authority does not exist either way, 
 ordinary care is sufficient in the other. This is not a non sequitur. 
 
270 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 It seems to me to be more reasonable to apply the strict rule to the 
 custody of goods than to the person ; for if they be stolen the cred- 
 itor cannot levy again, and he must bear the loss without the 
 slightest default of his own ; whereas, for an escape, if it is the 
 defendant's own act, he may be again arrested. In the one case 
 the debt is absolutely satisfied by the levy, in the other it is only 
 contingently so. * * * [5^3] * * * 
 
 The sheriff, when he levies, is armed with authority to become 
 the exclusive custodian of the property seized, and it is his duty to 
 become so in fact, if he would not risk its abstraction. This care 
 is his personal interest, if the law requires him to account for the 
 property, unless he is divested of it by the act of God, the public 
 enemies, the law, or by some irresistible accident, such as sudden 
 fires, or the like. Nothing but such a rule we think adequate for 
 such a trust, and we believe the stringency of the law in Pennsyl- 
 vania in regard to sheriffs, has so much increased the care of in- 
 cumbents of the office in the discharge of their duties, that it ac- 
 counts for the fact that we have but few cases^ comparatively 
 speaking, against sheriffs for deficiency in the discharge of their 
 official functions. The opinion of jurors of what is due care and 
 diligence, although in many cases it is necessarily a standard of lia- 
 bility, is at best a loose one, especially in regard to officers of influ- 
 ence, such as sheriffs. It would be found to be too flexible for 
 exact justice. Through sympathy for the officer the debtor and 
 creditor would be liable to be forgotten. One rule would govern 
 one case, and a different one another. It is infinitely better, there- 
 fore, to contract the necessity for a resort to vague standards than 
 to enlarge it. We shall doubtless find no lack of good and efficient 
 men ready and willing at all times to risk the responsibility of the 
 rule for the sake of the office. 
 
 An objection is sometimes urged that the officer is allowed no 
 fees for watchmen, or for the removal of goods. This is doubtless 
 because the law-making power has supposed that the taxable costs 
 for executing process, and in making sales, are sufficient for this 
 purpose. If they are not, the law should be altered ; for it would 
 be a bad system that would take away the control of the debtor 
 over his property, which may not, before sale, go into the hands of 
 
LIABILITY OF THE OFFICER AND HIS SURETIES. 271 
 
 the creditor for preservation, and yet leave it liable to be stolen or 
 embezzled while in the custody of the sheriff. [514] 
 
 In Watson on Sheriffs, 188, the rule of the English authorities 
 in regard to the liability of sheriffs in executing mesne process, is 
 thus stated : "After the sheriff has seized goods, it is his duty to 
 remove them to a place of safe custody until they can be sold, for 
 if they be rescued, the sheriff is liable to the plaintiff for their 
 value; Sly v. Finch, Cro. Jac. 514, Godbolt 276; Mildmay v. Smith, 
 3 Saunders (Eng.) 343 ; and it is said that if the sheriff take cattle, 
 and afterwards the cattle die for want of meat, the sheriff is ans-; 
 werable for the value returned.'' Clerk v. Withers, 2 Lord Raym. 
 1075. The rule of the common law undoubtedly was, and is, that 
 the sheriif is liable for goods seized on final process, unless pre- 
 vented by inevitable accident or public enemies. The authorities 
 above cited prove this beyond doubt. See also as to this the opin- 
 ion of Mr. Justice Redfield, Bridges v. Perry, 14 Vt., 262. 
 
 The rule of the common law is maintained by this learned 
 judge in the case cited, and the learned counsel for the defendant 
 m error were led into error in citing it as sustaining their theory of 
 the case, in not adverting to the distinction drawn between an at- 
 tachment, the object of which is to compel appearance, and an 
 execution. In the former, the-sherifif is held to occupy only the 
 position of an ordinary bailee. The reason for the distinction 
 seems to be not only in the effect between debtor and creditor as to 
 satisfaction, but the delay before final process to dispose of the 
 property, sometimes extending to several years, and usually con- 
 tinuing for at least a year, until the case is finally tried. To hold 
 the sheriff to the strictness of the common law rule on the subject 
 of final process to cases of attachment, would, in the opinion of 
 this able judge, be unreasonable ; but he adds, "where property is 
 taken on final process, it is to be kept but a short time at longest, 
 so that it may be closely watched and kept with this severe dili- 
 gence for a few days without materially interfering with the duties 
 of the sheriff." Where attachment process is used for different 
 purposes, sometimes as final, and at others as mesne process, as it 
 is in several of the New England states, errors on this point may 
 easily be made as to what is the judgment of their courts, without 
 
272^ CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 carefully noticing the exact nature of the process adverted to. 
 There is a distinction, well defined, I think, between the two kinds 
 of process. It was drawn directly from the common law distinc- 
 tion between custody on a capias ad respondendum and a capias ad 
 satisfaciendum. In the former it is said that the sheriff may 
 return a rescue, Mildmay v. Smith, 3 Saunders (Eng.) 343, and 
 note ; Clerk v. Withers, 2 Lord Raym. 1075 ; O'Neil v. Marson, 5 
 Burr. 2813 ; which he may not do in the latter. See authorities for 
 it above cited ; see, also, as ta the rule of liability, Sanford v. Bor- 
 ing, 12 Cal. 539; Collins v. Terrell, 2 S. & M. (Miss.) 383; Aber- 
 crombie v. Marshall, 2 Bay (S. C.) 90. [5^5] 
 
 A case much relied on by the counsel on both sides, is Brown- 
 ing V. Hanford, first reported in S.Hill (N. Y.) 588, afterwards in 
 7 Id. 120, and finally in 5 Denio 586. The point of that case was, 
 whether a sheriff's return of a loss of goods by fire was evidence 
 in his own favor. It seems to have been held that it was not. Va- 
 rious judges and senators expressed their views, in that case, on 
 the extent of a sheriff's liability ; all agreeing that for an unavoid- 
 able accident, such as a sudden fire, he was not liable, and a major- 
 ity seeming to hold that he was only answerable for the absence of 
 ordinary care and diligence in regard to property taken on final 
 process. A distinction is made between the bailee or receiptor of • 
 the sheriff, as he is called, and the sheriff when he retains the cus- 
 tody of goods. In the former, that nothing short of the act of 
 God, public enemies, or inevitable accident, will excuse the non- 
 delivery of the property, while in the latter case, a loss, after ordi- 
 nary care and diligence bestowed, is not to be visited with liability. 
 The distinction seems hardly reasonable, and not quite logical. It 
 was said, by some of the judges in that case, that the distinction 
 grew out of the form of the receipt, which is an agreement without 
 exception to deliver, while others say it is a general principle of 
 law. If the liability grows out of the contract, resulting from its 
 terms, then it does not affect any question or principle of law on 
 the subject. But if it result from legal principles, I cannot compre- 
 hend why there should be any difference between the sheriff when 
 he is bailee, and when his receiptor is bailee ; why, utmost care will 
 not excuse in the one case, and less than that will in the other. We 
 
AGAINST A PURCHASER AT PRIVATE SALE. 273 
 
 feel no disposition to adopt the uncertain theories of this case, and 
 abandon the salutary rule of the common law, which, although 
 there has been but little reported judicial discussion of the ques- 
 tion, has, I think, alvyays among the profession been supposed to 
 be the law of the state. I have no doubt, as was said in the case 
 just referred to, that casualties such as sudden fires would and 
 ought to be classed with inevitable accidents, and excuse the 
 sheriff. * * * 
 
 Judgment reversed, and venire de novo awarded. 
 To the same effect see Gilmore v. Moore, 30 Ga. 628; Collins v. 
 Terrall, 2 S. & M. (Miss.) 383. In Runlett v. Bell, 5 N. H. 433, a sher- 
 iff was held not liable to the attaching creditor for property deposited 
 with persons at the time solvent, who afterward converted the prop- 
 erty claiming to own it and then became insolvent, but stress was laid 
 on the fact that the creditor had sued them In the name of the ofllcer 
 for the conversion, which was said to be adopting the officer's act. 
 But see Garrett v. Hamblin, 11 S. & M. (Miss.) 219, and Phillips v. 
 Lamar, 27 Ga. 228, in which last case the bank where the sheriff depos- 
 ited the money failed and he was held liable. 
 
 5. RIGHT AGAINST A PURCHASER FOR VALUE AT PRIVATE 
 SALE. 
 
 REEVES V. SEBERN. 
 i6 Iowa 234, 85 Am. Dec. 513. (1864) 
 
 Under Modern American Rule as to When Lien Attaches — Purchasers 
 for Value with Notice — The Three Rules — Compara- 
 tive Extent to Which Each Prevails. 
 
 Action by Reeves & Co. against Sebern. From judgment 
 for plaintiffs defendant appeals. Affirmed. 
 
 Plaintiffs, who are creditors of K. & H., claimed the goods in 
 controversy by purchase from K. & H. Defendant, as sheriff, 
 claimed them under a subsequent levy on execution against K. & 
 H. The court below found that the execution was issued and in 
 defendant's hands for service, and that plaintiffs and K. knew 
 it before their purchase was made ; also, that the purchase was free 
 from fraud, and that the writ was not levied till nearly a month 
 after the purchase. 
 
 C. H. Conklin, for appellant. 
 
 /. C. Traer, for appfcHees. 
 
 The Court by Dillon, /. * * * The defendant now claims 
 
274 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 that the execution, though not levied, was a lien upon the goods 
 and chattels of the debtor. We are aware of no decision in this 
 state fixing the time when the goods of an execution defendant 
 are bound, whether from the teste of the writ, or from its delivery 
 to the officer, or from actual levy only. This subject is now set- 
 tled by statute, which provides that execution shall bind only from 
 the time of levy. Laws 1862, p. 231. This act was not in force 
 at the date of the transaction now in question, and hence it be- 
 comos necessary to state what the law was before the act was 
 passe; i. 
 
 Li the common law the writ of H. fa. bound the chattels of 
 the defendant from its teste. As this had the unjust effect to 
 overreach and defeat sales made even before the writ was deliv- 
 ered to the sheriff, it was remedied by the statute of 29 Charles II, 
 which made the writ binding from the time of its d-elivery to the 
 sheriff to be executed. We have very few if any decisions as to 
 what the common law in this country is, because the subject is, 
 in most of the states, regulated by express statute. Thus, in New 
 York, the statute of 29 Charles is re-enacted expressly: Ray v. 
 Birdseye, 5 Denio 619, 624; see also Hotchkiss v. McVickar, 12 
 Johns. 403. So in Indiana : McCall v. Trevor, 4 Blackf. 496. So 
 in Illinois : Marshall v. Cunningham, 13 111. 20 ; Dodge v. Mack, 
 22 Id. 93. So in Kentucky: Tabb v. Harris, 4 Bibb, 29, 31 ; Ar- 
 berry v. Noland, 2 J. J. Marsh. 421. So in Florida : Love v. Wil- 
 liams, 4 Fla. 126 ; and Maryland : Furlong v. Edwards, 3 Md. 99 ; 
 and Alabama: McMahan v. Green, 12 Ala. 71, 46 Am. Dec. 242; 
 Jordan v. Mead, 12 Ala. 247; Andress v. Roberts, 18 Ala. 387. 
 In Missouri, as between two officers, the first levy holds, though 
 the writ was delivered last. Field v. Milburn, 9 Mo. 488, 492. 
 In California and Ohio, by Statute, the lien is from levy only. In 
 North Carolina, where the common law, as a body, is adopted, the 
 lien is from the teste : Harding v. Spivey, 8 Ired. 63 ; and Tennes- 
 see follows North Carolina: Union Bank v. McClung, 9 Humph. 
 91 ; Barnes v. Hayes, i Swan. 303. 
 
 [337'\ In the absence of statute, we must conclude that the 
 execution is a lien either from its teste as at common law, or only 
 from actual levy. We do not feel bound to adopt the unreasonable 
 
LIABILITY OF OTHER OFFICERS AND CREDITORS. 275 
 
 and unjust rule of the ancient common law, so unjust, indeed, that 
 it had to be remedied by statute. 
 
 It does not accord with the policy of our laws, nor harmonize 
 with decisions on kindred subjects. The whole current of judicial 
 decisions, in this state, has ever, and, we think, most wisely, been 
 asjainst secret constructive liens, especially when these are set up 
 against purchasers. Barney v. McCarty, 15 Iowa, 510; Barney 
 V. Little, Id., 527 ; Cummings v. Long, 16 Iowa, 41 ; Jones v. Peas- 
 ley, 3 G. Greene, 52 ; Gimble v. Ackley, 12 Iowa, 27. And we are / 
 not mistaken in saying that the professional sentiment in this state 
 has always been, that executions were not liens on chattels until 
 actual levy. 
 
 This was the opinion of the court below, and in this respect 
 
 there is no error. * * * 
 
 AfHrmed. 
 Compare Evans v. Barnes, post, p. 302. 
 
 6. RIGHT AGAINST ANOTHER OFFICER AND CREDITOR WHO 
 HAVE TAKEN THE PROPERTY UNDER A JUNIOR 
 WRIT. 
 
 PAYNE V. DREWE. 
 4 East 523. (44 Geo. III. A.D. 1804) 
 
 This decision was rendered by the English Court of King's Bench; 
 Ellenborough, C.J., Grose, Lawrence and LeBIanc, JJ. 
 
 Under 29 Car. II. — Rule of Priority — Duty of Officer — Liability to the 
 Creditor Whose Writ He Holds — Liability to the Other Credi- 
 tor — Liability for Contempt of Court — Distinguishing 
 Cases in Which One Officer Holds All the 
 Writs — Importance of Actual Levy. 
 
 Action by Payne against Drewe as sheriff of Dorset, for a 
 false return nulla bona to a H. fa. on a judgment against C. Sturt. 
 Judgment for plaintiff. The sheriff first took and inventoried 
 sufficient goods of the execution defendant to satisfy the fi. fa., 
 but afterward quitted possession of them and returned his writ 
 nulla bona, because before his writ was issued the court of chan- 
 cery had ordered a commission of sequestration on the complaint 
 of H. W. Portman et at. against said C. Sturt to compel payment 
 of 2000;. 
 
 Gaselee, for plaintiff. 
 
 Dampier, for defendant. 
 
276 CHARACTER OF THE CREDITOR S LIEN OR RIGHT. 
 
 The Court by Lord Ellenhoruugh, C.J. * * ■ We shall, for 
 the purpose of the present question, assume that the award of the 
 sequestration had the same obligatory effect as the award of a writ 
 of execution against the goods would now have at the common 
 law * * * before the statute of frauds, and which execution at 
 ■common law then related to the teste or award of the execution; 
 I say, thus considering the effect of a sequestration for the pur- 
 pose of this question, (and in so considering it we allow it the most 
 extensive effect which can possibly be claimed on its behalf), it 
 still does not appear to us that the sequestration in question did, 
 under the circumstances, afford a sufficient excuse to the sheriff 
 for not executing the writ of iieri facias at the suit of the plaintiff. 
 The sheriff is not excused, if the sale he was required to make un- 
 der the iieri facias would, if made, have been a valid and effectual 
 one in favor of his vendee : and, if he would not, by making such 
 sale thereunder, [5j5] have subjected himself either to the action 
 of the party interested in the sequestration, or to the punishment 
 of the court of chancery as for a contempt of its process. Whether 
 the sale he would have made, supposing he had sold under the 
 iieri facias, would have been a valid and effectual one, depends 
 upon the sense in which, and the extent to which, goods shall be 
 considered as bound by the award of an execution before the stat- 
 ute of frauds, and by the delivery of the writ of execution since 
 that statute. The sense in which, and extent to which, goods are 
 in either case said to be bound is, that it binds the property as 
 against the party himself and all claiming by assignment from, 
 or representation through or under him : but it does not so vest 
 the property in the goods absolutely as to defeat the effect of a 
 sale thereof made by the sheriff under an execution. This was 
 settled in the case of Smallcomb v. Cross and Buckingham. * * * 
 
 Assuming, therefore, upon these authorities of Lord Holt and 
 Lord Hardwiciie, and particularly on the authority of the case of 
 Smallcomb v. Cross, &c. as decided by Lord Holt, and which has 
 been generally received and referred to as the established law on 
 the subject, that the sheriff could have made a valid and effectual 
 I sale in this case; the next questions are, Would he, by executing 
 the writ of fieri facias, have subjected \542] himself to the action 
 
LIABILITY OF OTHER OFFICERS AND CREDITORS. 277 
 
 of the party to the sequestration, or to punishment by the court 
 out of which it issued? As to the first of these questions, it is ! 
 certainly to be answered in the negative. What pretence of com- 
 plaint can he have against the sheriff who gave no notice of that 
 process in deference to which the sheriff was to forbear to levy, 
 which he might easily have made available by ordinary diligence, 
 and who took no steps for i8 months to make it so? Vigilantibus 
 non dormientibus leges subveniunt. If he did not enforce it dur- 
 ing that period, at what period was it to be expected that he would 
 do so? The commission extends to Mr. Charles Sturt's goods 
 not in the bailiwick of one sheriff only, but throughout the whole 
 realm. Were all his Majesty's subjects to hold their means of 
 remedy against the personal estate of Mr. C. Sturt, in whatever 
 county they might be found, in suspense and abeyance till the par- 
 ties to the sequestration should think fit to avail themselves of 
 theirs? * * * 
 
 As to the light in which the Court of Chancery would 
 view an execution at common law, executed [544] under 
 these circumstances ; the contempt, if any, which that court would 
 probably animadvert upon would be a contempt of its own process 
 by those who had procured it to be awarded, and the commission- 
 ers who were empowered, and who instead of putting it in force, 
 suffered it to become the means of protection to him against whom 
 . it was granted and required to act under it. As against these par- 
 ties, and also against Mr. C. Sturt, the defendant in the execution, 
 the sheriff, may, if he can make out a case of collusion between 
 them, yet perhaps be able to obtain some relief by the intervention 
 of that court in his favor. That protection and a full indemnity 
 he might have had for asking for in the first instance from that 
 court; or this court would, upon his application, have enlarged 
 the rule upon him to return the writ of fieri facias, unless the plain- 
 tiff would have indemnified him against the sequestration ; so that 
 if he now stand unprotected against the action of the plaintiff, it 
 is by his own neglect that he does so. * * * 
 
 The case of Hutchinson v. Johnston, i Term Rep. 
 729, in which it was holden, that where two writs of 
 fieri facias against the same defendant are delivered to 
 
278 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 a sheriff on different days, and no actual sale of the 
 defendant's goods is made, the first execution must have the prior- 
 ity, may be supposed, on the first view of it, to lay down a doctrine 
 somewhat contrary to what has been already stated ; but that case 
 appears to me to decide only that where two writs of fteri facias 
 are delivered to the same sheriff, he must, as between himself and 
 the several plaintiffs in those executions, sell under that writ which 
 is first delivered, although he may have first seized under the last 
 delivered writ. But in the present case there are two different 
 writs or authorities, each so far binding the goods as to warrant 
 a sale under them, one delivered to the sheriff, and another pre- 
 viously delivered to other persons, equally competent with the 
 sheriff to have seized under them. And the question is not which 
 of two writs, equally mandatory to the same person, shall have a 
 priority in point of execution by him, but whether one writ man- 
 datory to the sheriff for one purpose shall remain in his hands 
 wholly suspended in point of execution, merely because other per- 
 sons having a similar competent authority under other process of 
 another court to them directed have chosen [545] to neglect the 
 execution of such last-mentioned process ; which brings the ques- 
 tion nearly to this, namely. Whether a writ which is from the de- 
 livery immediately binding as against the defendant, so as to tie 
 up his hands from alienating the goods which might be seized 
 under it, is to be regarded as in effect self-executed by its own 
 proper legal effect and force for all purposes ? That it is not, the 
 case of Smallcomb v. Buckingham decides ; for if it were so, then 
 any sale made by the sheriff under a second execution, when he 
 had a former one in his hands, would be a nullity in respect even 
 to the sheriff's vendee thereof, which would directly contradict 
 what was established in that case. It appears to me, therefore, 
 not to be contradictory to any cases, nor any principles of law, 
 and to be mainly conducive to public convenience, and to the pre- 
 vention of fraud and vexatious delay in these matters, to hold that 
 where there are several authorities equally competent to bind the 
 goods of a party when executed by the proper oMcer, that they 
 shall be considered as effectually, and for all purposes, bound by 
 the authority which -first actually attaches upon them in point of 
 
AFTER ABANDONMENT BY THE OFFICER. 279 
 
 execution, and under which an execution shall have been first exe- 
 cuted. In this case, being of opinion that the sheriff would not, 
 by executing the writ of execution to him directed, liave subjected 
 himself either civilly or criminally to any inconveniences, we think 
 that he ought to have done so; and not having done so, he has 
 made himself -liable to this action, in which we are of opinion that 
 the plaintiff is entitled to recover. 
 
 Postea to the Plaintiff. 
 
 This is a leading case, is much cited in decisions touching this 
 branch of the subject, an4js_ggnerally recognized as authority. 
 
 Where the process created a lien from the delivery of it to the ofla- 
 cer for execution, an execution was issued on a judgment of a justice of 
 the peace and placed in the hands of a constable. Afterward an attach- 
 ment was issued from the circuit court in favor of another creditor of 
 the same debtor and given to the sheriff, who immediately seized the 
 debtor's property thereon. The constable then returned his writ: "No 
 goods except in the hands of the sheriff, which he refuses to relin- 
 quish." Then the creditor under the justice judgment filed a motion in 
 the circuit court to order the sheriff to pay to him sufficient of the pro- 
 ceeds of the sale of said property to satisfy his execution. The order 
 of the circuit court denying this motion was affirmed on appeal on the 
 authority of Payne v. Drewe. Field v. Milburn, 9 Mo. 488. 
 
 In Illinois it was held that a sheriff having a fi. fa. in his hands 
 might take property from a constable who had levied on it under a 
 junior distress warrant and that the execution creditor was entitled to 
 be first satisfied out of the proceeds. The decisions are reviewed at 
 length. Rogers v. Dickey, 6 111. (1 Gilm.) 636. 
 
 In New York execution was issued and delivered to the sheriff of the 
 county where the property was situated. Then the debtor removed it 
 to another county to prefer another creditor who immediately obtained 
 execution to and levy and sale by the sheriff of the latter county there- 
 on. The first creditor meanwhile obtained a testatum fi. fa. to the sheriff 
 of the latter county, and on motion the supreme court awarded the pro- 
 ceeds of the sale in the sheriff's hands to the creditor whose writ was 
 first delivered but not delivered to the sheriff having the goods till 
 shortly before the sale under the other writ. Lambert v. Paulding, 
 18 John. 314. See also Smallcomb v. Cross, ante, p. 245, and Schuylkill 
 County's Appeal, ante, p. 247, and cases there cited. 
 
 RIGHT TO THE PROPERTY AFTER WRONGFUL RELEASE OR 
 
 ABANDONMENT BY OFFICER. 
 A. Against the Debtor. 
 See Greene v. Burke, post, p. 318. 
 
280 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 B. Against a Subsequent Purchaser for Value. 
 
 McGARRY V. LEWIS COAL CO. 
 93 Missouri 237, 6 S. W. 81. (1887) 
 
 Garnishment — Character of Creditor's Lien — Right to Possession — 
 
 Garnishee's Liability — Creditor's Right Against 
 
 Purchasers Without Notice. 
 
 Action by McGarry against Lewis Coal Co. for damages for 
 the conversion of the tug "AHce Parker." From judgment for 
 defendant on general demurrer to plaintiff's petition he appeals. 
 Affirmed. 
 
 The petition demurred to alleged that plaintiff had recovered 
 a judgment against Thomas Parker, Jr., as garnishee of Thomas 
 Parker, Sr., because when said garnishee was summoned he had 
 said tug in his possession as agent of said T. P. Sr. The petition 
 further alleged that after the garnishee was summoned but before 
 judgment was rendered against him, the defendant received said 
 tug into its possession, and converted the same to its own use to 
 the plaintiff's damage, $5,000, for which he sues. 
 
 Martin, Laughlin & Kern, for plaintiff. 
 
 Given Campbell, for defendant. 
 
 The Court by Ray, /. * * * It will be observed that no 
 notice or knowledge of said garnishment, by this defendant, is 
 charged, nor is any collusion alleged. Briefly, then, the 
 question thus presented by the record is, whether plain- 
 tiff, as assignee for value, of said judgment in favor of Laughlin 
 against {240^ Thomas Parker, had, by said process of garnish- 
 ment, against said Thomas Parker, Jr., upon alias execution, 
 under said judgment, acquired a valid lien upon the said steam' 
 tug, "Alice Parker." A lien of this sort is unknown to common 
 law, and the question, then, is, whether our statute creates a 
 specific lien upon the property, under and by virtue of the service 
 of the process of garnishment. In sustaining the demurrer, the 
 trial court must have held that no such lien existed, and- in this 
 view of the law we concur. None of the various provisions in our 
 statute give in terms any such lien, and it is, we think, obvious that 
 the responsibility of the garnishee (at least, until an order of court 
 is made in the cause to turn over the property) is given and substi- 
 
AFTER ABANDONMENT BY THE OFFICER. 281 
 
 tuted in lieu of such lien. No provision has been pointed out pro- 
 hibiting the garnishee, upon the mere service of the garnishment 
 process, from disposing of the property, but, on the other hand, 
 various sections on the subject look to rendering the. garnishee 
 personally liable for misappropriation, or failure to produce the 
 property to satisfy the judgment, which may be rendered in the 
 cause. 
 
 In general, it may be said that garnishment is a proceeding 
 especially designed for the attachments of credits or debts due the 
 defendant, and while it may be employed with respect to tangible 
 and specific property in the possession of a person other than the 
 debtor, it is in these respects resorted to in order to avoid the re- 
 sponsibilities incident to the actual seizure and custody of the 
 property. Often it is uncertain whether the third person has in 
 his possession any property belonging to the defendant, or it may 
 belong to the defendant, with the right of possession in such third 
 person. Garnishment is, as the term implies, a warning to the 
 garnishee not to dispose of the property of the defendant, in his 
 hands, and that if he does so dispose of the same, he [241] will 
 subject himself to personal liability for the value, to the extent, at 
 least, of the plaintiff's debt or claim. 
 
 Ordinarily property is not deemed to be in the custody of the 
 law until actually seized and reduced into possession by the officer. 
 Under the law applicable to attachments, it is the levy by the offi- 
 cer that creates the lien. If the plaintiff is not satisfied to look to 
 the responsibility of the garnishee, he may apply to the court, or to 
 the judge in vacation, and obtain an order upon the garnishee to 
 deliver the property to the sheriff or into court, or the court may 
 permit the garnishee to retain the property upon the execution of a 
 bond to plaintiff with security. R. S., 1879, § 2524 ; Bank of Mis- 
 souri V. Bredow, 31 Mo. 523. These provisions seem to have been 
 regarded as affording ample protection. 
 
 In considering the subject of garnishment, Mr. Wade, in his 
 work on Attachments, observes that "it differs fr.om attachments 
 by seizure in two important particulars : ( i ) Its validity does not 
 depend on the officer's taking possession. ^(2) It creates no specific 
 lien upon the defendant's property in favor of the plaintiff." 2 
 
282 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 Wade on Attachment, § 325. And again he says : "It may also- 
 be less satisfactory to the plaintiff for the reason, that instead of 
 the specific lien the responsibility of the garnishee is substituted." 
 lb. Drake on Attachments, announces a similar view in language 
 as follows: "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." Drake on Attachments (4 Ed.) § 453. [242] * * * 
 
 For these reasons, and upon these authorities, the demurrer 
 to the petition was, we think, properly sustained. This leads to 
 an affirmance of the judgment, in which all concur. 
 
 AfHrmed. 
 
 The decision has been severely criticised. See Barton v. Spencer, 
 3 Okl. 270, 41 Pac. 605. But, whatever may he said of the language 
 used by the court, the decision seems to me correct. It will be ob- 
 served that the question before the court was not the same as in Ers- 
 kine v. Staley. 
 
 How does the question here presented compare with that in Small- 
 comb V. Cross, ante, p. 245, and Acton v. Knowles, post, p. 298 ? 
 
 In sustaining an action by an execution creditor against a sheriff 
 for abandoning property he had levied, the court said the creditor's 
 lien was lost by the abandonment, another officer having since seized 
 it on another execution. Commonwealth v. Contner, 18 Pa. St. 439. 
 
 8. CHARACTER OF THE LIEN ACQUIRED BY GARNISHMENT. 
 
 ERSKINE V. STALEY. 
 38 Virginia (12 Leigh) 406. (1841.) 
 
 Under 29 Car. II. — Lien of Garnishment — Garnishment v. Levy, Prior- 
 ity — Payne v. Drewe Distinguished. 
 
 Bill for injunction by Erskine & Eichelberger against Hamil- 
 ton & Cost, Staley, and the sheriff of Jefferson County. From a 
 decree dissolving the preliminary injunction granted on filing the 
 bill, complainants appeal. Reversed. 
 
 Erskine & Eichelberger sued Staley by foreign attachment 
 in chancery serving J. G. Johnson as .garnishee, July 14, i837,^^_i 
 for goods in his hands belonging to Staley. Afterward Hamilton 
 
UNDER GARNISHMENT. 283 
 
 & Cost, having sued Staley by capias which was returned non est 
 inventus, were awarded an attachment to which the sheriff re- 
 turned: "Levied Aug. 9th, 1837, on sundry household furniture 
 and store goods, * * * which were previously attached in the 
 hands of J. G. Johnson by foreign attachment and surrendered by 
 said Johnson to me subject to said attachment." Hamilton & 
 Cost, having obtained judgment and an order to the sheriff to sell 
 the goods in his hands to satisfy said judgment and costs, com- 
 plainants exhibited this bill at the November term ( 1837), praying 
 that the sale be restrained and claiming priority. 
 
 Lyon & Stanard, for complainants. 
 
 Robinson, for defendants, insisted that this case was con- 
 troled by Payne v. Drewe, because complainants had made no levy, 
 citing other cases also. 
 
 The Court by Allen, J. * * * The foreign attachment was 
 first executed ; and the only question of interest presented by the 
 case, is, whether a creditor coming by operation of law, after <"he 
 service of the subpoena in chancery on the home defendant, is en'^, 
 titled to priority? 
 
 This court has decided, in the case of M'Kini v._ Fultons, 
 6 Call 106, that the endorsement by the clerk7 according to the 
 practice of the country, is sufficient to restjrain the application of 
 the effects to any other use, and is a substitute for the formal order 
 required by the words of the'statute ; and that case, and the case of 
 Williamson v. Bozvie 6 Munf. 76, decide, that a subpoena so en- 
 dorsed, operates, from the date of its service, to inhibit any aliena- 
 tion by the absent debtor. According to these adjudications, the 
 lien acquired by the service of the subpoena cannot be defeated by 
 any act of the debtor, except in the manner prescribed by the 
 statute : namely, the giving bond to abide by the decree. This be- 
 ing the law, it would seem to follow, almost as a necessary conse- 
 quence, that no subsequent creditor coming in, not by the act of 
 the 'party, but under the operation of law, can defeat the lien. As 
 a general rule, the creditor is entitled to those rights only, which 
 the debtor held. Even in the case [422^ of a fraudulent deed, 
 though it is good as between the parties, it is void as against the 
 creditor ; as to him the property remains' in the debtor, as if no 
 
284 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 deed had been executed. Therefore, when it is conceded that the 
 debtor, by no transfer or incumbrance, can defeat the lien of the 
 attachment ; that assignees coming in under him must take subject 
 to the rights of the attaching creditor ; if it is held, that a creditor 
 coming in afterwards by operation of law is to be first satisfied, he 
 will acquire rights which the debtor himself had not. If the 
 statute is to receive such a construction, cases might, and, in prac ■ 
 tice, probably would occur, presenting strange anomalies. The 
 attaching creditor's lien is superior to the claim of the bona fide 
 assignee ; the right of the bona fide assignee is confessedly superior 
 to that of a creditor whose execution has not been delivered to the 
 sheriff before the assignment or transfer ; but if the principle con- 
 tended for by the appellees is law, the creditor by execution, who 
 is subordinate to the assignee, is to be preferred to the attaching 
 creditor, whose claim is superior to that of the assignee. 
 
 It was argued, that the lien created by the service of the at- 
 tachment in chancery, results from an application of the doctrine 
 of lis pendens; that this authorizes the court to prevent the party 
 himself from defeating the creditor by any alienation of the sub- 
 ject, but does not extend to the case of a creditor coming in by act 
 of law. The proceeding by foreign attachment is a proceeding in 
 rem; the jurisdiction cests upon the fact, that the absent debtor 
 has effects subject to the control of the court ; and if no effects aie 
 found, the court has no authority to proceed. But when its juris- 
 diction once attaches, the court, according to well settled princi- 
 ples, may go on to do justice. If, however, the effects of the 
 absent debtor maj' be taken from under its control by another 
 creditor coming with a /?. fa., the foundation upon which its juris- 
 diction rested will have been swept {423] away, and the plaintiff 
 will be without remedy. So that, even admitting we were to look 
 to the doctrine of lis pendens for the source of the lien of the 
 attaching creditor, it seems to me, in a case like this of a proceed- 
 ing in rem, where the jurisdiction of the court depends upon the 
 existence of effects subject to its control, if that jurisdiction has 
 once properly attached, it can never be ousted either by the act 
 of the party himself or of any third person. The terms of 
 the statute, it seems to me, will admit of no other construe- 
 
UNDER GARNISHMENT., 285, 
 
 tion; "the court may order the debts to be paid and 
 effects to be delivered, to the plaintiff, upon his giving security 
 for the return thereof, to such person and in such manner as the 
 court shall direct." He holds them subject to the order of "the 
 court alone. Would it be any defence in an action upon the bond 
 given by him to return them, to say they were taken from him by 
 a subsequent execution? * *. * Time by the law is given to the 
 absent defendant to show cause against the decree. The effects 
 can be held by the court until the period expires, and then, I pre- 
 sume, as the decree has become absolute, there could be no doubt 
 of the propriety of applying the [424] effects to the discharge of 
 the decree, without requiring security. But under the construc- 
 tion contended for, it would be in the power of any creditor getting 
 a judgment by law, to levy on these effects, and so deprive the 
 attaching creditor of the fruit of his decree. * * * 
 
 It was contended, that as there was no actual seizure, no levy 
 on specific effects, which were thus placed under the custody of 
 law, the property in the goods remained in the debtor, and being 
 in him other creditors might levy on them. But granting that no 
 actual seizure is made so as to divert the property of the debtor, 
 the consequence deduced does not follow. The legal property of 
 goods may remain in one, subject to the equitable lien of another, 
 and third persons coming under the first, must occupy his position 
 and hold subject to the lien. For many purposes the property of 
 the goods may rest in the debtor, notwithstanding the service of 
 the attachment. Thus, in several attachments against the same 
 absconding debtor, the attachments are levied successively on the 
 same goods as his property, and they are paid according to the 
 dates of their respective levies. So with executions. And in the 
 case of foreign attachment, where the real estate is proceeded 
 against, there is no seizure, no divesting of title, and from tiie 
 nature of the subject cannot be. 
 
 But, in truth, I look upon the service of the attachment as 
 equivalent to an actual levy. The effects may remain in the hands 
 of the garnishee, but under the control of the court : he acquires a 
 special property in them as agent of the court : and this property 
 is sufficient to protect him against the claims of the owner; it is his 
 
286 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 <Juty SO to protect himself ; and upon his failure, a personal decree 
 will go against him. The property of the goods is so far divested 
 as to prevent a recovery by the party. And this distinguishes the 
 case from Payne v. Drewe, which has been so much pressed on the 
 court. ■■' * * Lord Ellenborough, without deciding what was the 
 effect of a writ of sequestration, * * * held, that it did not so vest 
 the property in the goods absolutely, as to defeat a sale made by 
 the sheriff under an execution ; that the property of the goods was 
 not altered, but continued in the defendant till execution executed. 
 And this, it seems to me, is very clear from this consideration, that 
 if no levy is made before the return day, the goods cease to be 
 bound, and an alienation made whilst the writ was in force could 
 not be overreached by a levy on, a subsequent writ. The writ, 
 when executed, related at common la\y to the time of the teste, 
 and now to the time of the delivery, so as to overreach interme- 
 diate alienations. Having decided that the sheriff could have 
 levied, and made a valid sale, {4261 notwithstanding the writ of 
 sequestration in the hands of the sequestrators, he proceeded to 
 show, that, imder the special circumstances of that case, the sheriff 
 would not have been liable to the action of the party grieved. If, 
 however, I am right in supposing that a foreign attachment is 
 tantamount to an actual levy, that it places the effects under the 
 control of the court, and so far vests the property in the garnishee 
 or agent of the court, as to defeat all claims or transfers of the 
 defendant, — the case stands upon wholly different grounds. * * * 
 
 On the facts in this case, I think the proceeding by way of 
 foreign attachment was fully warranted ; and that the application 
 to the court to enjoin the sale under the order of sale in Hamilton 
 & Cost's action at law, was regular, and indeed the only remedy 
 the plaintiff's in the foreign attachment could resort to. [42/] 
 
 I think, therefore, the court below erred in dissolving the 
 injunction. * * * The other judges concurred. 
 
 Decree reversed, and cause remanded. 
 The remark in the opinion that injunction was complainant's "only 
 remedy" is mere dictum and clearly not well advised. The garnishee 
 might sue for the taking of the property if he had not consented, (Dene 
 V. Thomas, 64 Vt. 358, 24 Atl. 140), or the garnishing creditor might 
 recover the value of the property in trover against the sheriff [Roclc- 
 
UNDER GARNISHMENT. 287 
 
 wood V. Varnum, 17 Pick. (Mass.) 289] or against the execution credi- 
 tors themselves, if they were parties to the levy (Focke v. Blum, 82 
 Tex. 436, 17 S. W. 770, and cases cited therein), or, having recovered 
 judgment against the garnishee, might have execution thereon against 
 the garnishee's own property for his failure to produce the garnished 
 property, unless the garnishee has, without avail, exhausted all legal 
 means to prevent the property being taken from him (Johann v. Ruf- 
 ener, 32, Wis. 195), for it is the garnishee's duty as an officer of the 
 court to retain the property and dispose of it as his court shall direct. 
 Stiles V. Davis, 66 U. S. (1 Black) 101. 
 
 Nature of the Garnishing Creditor's Lien or Right. Under 
 facts very much like those in Brskine v. Staley, the supreme 
 court of Nebraska held the garnishing creditor entitled to the appoint- 
 ment of a receiver to take possession of the property which the gar- 
 C"nishee threatened to abandon. Maxwell, C. J., saying: "Neither can 
 the right he restricted to the personal liability of the garnishee, as he 
 might be insolvent or unable to pay the value of the property. We 
 hold, therefore, that garnishment is an attachment of the goods in the 
 hands of the garnishee. * * * in this case it is alleged in the petition 
 that a number of executions had been levied by the defendants * * * 
 and that a sale thereunder would defeat the plaintiff's claims. In such 
 a case while the plaintiffs have a remedy at law by bringing separate 
 actions against the defendants, still it would not be adequate. An 
 action in equity, therefore, is the proper remedy to prevent a multi- 
 plicity of suits, and determine the priorities of the several liens of the 
 parties. Sec. 213 of the code provides that 'The court, or any judge 
 thereof at chambers may, on application of the plaintiff and on good 
 cause shown, appoint a receiver * * * ' See. 214 provides that 'Such 
 receiver shall take possession » * * ' These sections apply alone to 
 property taken under an attachment. Where the garnishee abandons 
 the property, however, as is alleged in the petition in this case, there 
 is no doubt of the power of the court to appoint a suitable person to 
 take charge of the same. The court possesses this power independ- 
 ently of the statute. The property being a trust fund for the satisfac- 
 tion of the judgment the court may, when necessary for the preserva- 
 tion of the property, appoint a trustee to take charge of the same." 
 Northfield Knife Co. v. Sharpleigh, 24 Neb. 635, 39 N. W. 788. See also 
 Almy V. Piatt, 16 Wis., 169; Dahlman v. Greenwood, 99 Wis. 163, 74 N. 
 W. 215 ; Barton v. Spencer, 3 Okl. 270, 41 Pac. 605. 
 
 Contra. I believe the strongest cases against a lien being created 
 by garnishment are the following: Bigelow v. Andress, 31, 111. 322, in 
 which it was held that because the plaintiff acquired only the right to 
 the personal liability of the garnishee, a court of equity would not inter- 
 vene by injunction to preserve the property in his hands. Johnson v. 
 Gorham, 6 Gal. 195, 65 Am. Dec. 501, apparently conflicts with Erskine 
 V. Staley, and perhaps the court adopted the view urged by defendant's 
 counsel in this case. The court awarded the fund to the creditor whose 
 execution was levied on the property, after the garnishment, saying: 
 
288 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 "The service of a copy of execution and notice of garnishment upon a 
 third party, constitutes no lien on property of the debtor in his hands 
 capable of manual delivery." Afterward a decision more favorable to 
 the garnishing creditor's lien was rendered by the same, court. A grow- 
 ing crop was attached as "property not capable of manual delivery" 
 by "leaving with the person owing such debt, or having in his posses- 
 sion" such property (in this case the defendant himself), "a copy of the 
 writ, and a notice," etc. Then the debtor mortgaged the unharvested 
 crop; then the sheriff took it under his writ, and then the mortgagee's 
 atislgnee sued him for conversion; but the court held that the attach- 
 ment lien was the better title. Raventas v. Green, 57 Cal. 254. 
 
 It has been held that garnishment does not give such a lien as to 
 enable the creditor to maintain a creditor's bill to ascertain the title to 
 the property. Hunt J., dissenting. Wilson v. Harris, 21 Mont. 374, 54 
 Pac. 46. To same effect see Childs v. Carlstein Co., 76 Fed. Rep. S6. 
 
 9. HOW THE DEBTOR'S INTEREST MAY BE FORECLOSED AND 
 THE LIEN RIPENED INTO AN ABSOLUTE TITLE. 
 
 WILDER V. WEATHERHEAD. 
 
 32 Vermont 765. (i860) 
 
 Pursuing Statutory Directions — Importance — Agreements with Debtor 
 
 Waiving Compliance — Garnishee Accepting Orders — 
 
 Rule as to Other Processes. ■, 1 > : .' .' '. ',' .' 
 
 ^ -U' ' ' • ' ' 
 Trustee process by John Wilder against S. E. Weatherhead, 
 
 principal debtor, and Tyler L. Johnson as liis trustee. From 
 judgment against the trustee he appeals. Affirmed. •• 
 \ Johnson being indebted to Weatherhead was successively 
 served with trustee process by Weatherhead's creditors in the fol- 
 lowing order : Jacobs, Gregory, and plaintiff herein. Supposing 
 he was bound to pay the creditors in the order in which their proc- 
 esses were served on him, Johnson immediately accepted Weather- 
 head's orders on him in favor of Jacobs and Gregory, which he sub- 
 sequently paid, being to the full amount of their respective claims. 
 These payments he sets up in defense of Wilder's process with 
 which he was served before accepting the orders. Wilder knew 
 nothing of these orders till they were paid. 
 
 George Howe, for the trustee. 
 
 E. Kirkland, for plaintiff. 
 
 The Co%irt by Barrett, /. * * * The only question to be de- 
 cided is, whether the payment made by the trustee to Gregory ac- 
 
PROCEDURE TO PERFECT. 289 
 
 quits him of liability to be adjudged trustee in favor of the plaint- 
 iflf in this suit. * * * 
 
 The liability of Johnson, as trustee under the process of any 
 of said creditors, could only be perfected and fixed by a final [7(5/] 
 judgment against both himself and the principal debtor. The 
 right of the several creditors, as between themselves, by virtue of 
 their successive processes, to reach the goods, effects and credits 
 of their debtor in the hands of a third person, as trustee of such 
 debtor, is a matter of strict law, and unless the creditor in the prior 
 process perfects his right against the trustee, by obtaining final 
 judgment that may be enforced in the manner provided by the 
 statute, his process will fail to postpone or defeat the creditors in 
 the subsequent processes in reaching such goods, effects and 
 credits. As the trustee ca,n be charged with liability to any credi- 
 tor only by force of final judgment obtained under the process, if 
 he volunteers to favor a creditor in a prior process, when several 
 successive processes are pending at the same time, by paying to 
 him the trust fund, or delivering to him the trust property, without 
 such final judgment having been obtained, he does it at the hazard 
 of having to answer upon judgments that the creditors in the sub- 
 sequent processes may obtain. 
 
 The design of the statutes as to trustee process is to enable the 
 interest of the debtor in personal property, and his rights and 
 credits, in the hands of third persons, to be attached and made 
 available by his creditors, in the manner provided in said statute. 
 The rights of creditors, as between themselves, in the use and effi- 
 cacy of this form of process, stand in strict analogy to ,their rights; 
 under attachments made upon ordinary mesne process. The law 
 contemplates that the trustee himself shall be a mere passive stake- 
 holder, yielding only to the compulsive force of final judgment 
 duly obtained by any given creditor or creditors. 
 
 The case of Hunger v. Fletcher, 2 Vt. 524, is not inconsistent 
 with this view. That was an action on the case to recover dam- 
 age for the misbehavior of the sheriff, in selling property under 
 an arrangement between several successive attaching creditors 
 before judgments had been obtained. It appeared that he sold it 
 for more than it would have brought if he had kept and sold it 
 
290 CHARACTER OF THE CREDITOR'S LIEN OR RIGHT. 
 
 upon the executions, when obtained. Such executions were sub- 
 sequently obtained in due course, and seasonably delivered to the 
 sheriff to charge the property that had been attached and thus sold 
 by him. He applied the proceeds of the property thus sold upon 
 said executions, in the order of their priority, and they were [^68] 
 exhausted before reaching the plaintiff, who was the last of six 
 successive attaching creditors, but was not party to the arrange- 
 ment under which the sheriff made said sale of the property 
 attached. The court held that as the case showed that the plaintiff 
 had suffered no damage by the course thus taketi with the prop- 
 erty, he was not entitled to recover. 
 
 In the present case the question is, whether the property has 
 been so withdrawn from the trustee's hands by process of law, 
 and in pursuance of its provisions, as to disentitle the plaintiff to 
 claim a judgment for it against the trustee. * * * 
 
 As already indicated, a judgment in favor of Gregory against 
 the trustee, as well as against the debtor, was necessary in order 
 to perfect his lien acquired by the original service of his process, 
 and to give him any right to claim and take the property from the 
 hands of the trustee. As Gregory failed to perfect that lien and 
 right, the plaintiff thereupon succeeded to the unobstructed right, 
 iby pursuing his suit to judgment, to claim and hold of the trustee 
 -the property that had become changed in his hands by the original 
 service of his trustee process. 
 
 If it were proper for us to permit a regard for real or sup- 
 posed equities to countervail the operation of explicit provisions 
 of the statute, and well settled principles and rules of the common 
 law, the trustee in this case might seem entitled to some immunity 
 from his peril of having to pay twice what he was owing to the 
 defendant. But as the law was open before him, and thereby he 
 was entirely safe from such peril, so long as he saw fit to abide 
 by the law, it would hardly be allowable for this court to save him 
 from the consequences of his own improvidence by denying to the 
 -plaintiff the rights which the law accords to him. We think the 
 judgment of the county court was right, and it is 
 
 AMrmed. 
 
PROCEDURE TO PERFECT. 291 
 
 M'GREGOR V. BROWN. 
 22 Massachusetts (s Pick.) 170. (1827) 
 
 .,,,./, [.■'. a ■ ■ 
 
 Knowledge by Other Creditors — Statutory Notice — Whose Duty to Re- 
 cord Levy — Faiiure to Return Writ, Effect — Parol 
 Evidence to Identify Property. 
 
 Action on the case by John McGregor against Henry C. 
 Brown as sheriff, for an alleged default of his deputy, R. Deming, 
 in not recording an execution and levy thereon or returning ac- 
 cording to the precept, by reason of which a subsequent attachment 
 obtained priority. Plaintiff's execution was levied on the "carding 
 machine building," the attachment on the "clothier's works." By 
 parol it was shown that both were the same. Judgment for plaint- 
 iff. Case submitted by agreement to this court, consisting of 
 Parker, C.J., Putnam, Wilde and Morton, JJ. 
 
 Jones & Byington, for plaintiff. 
 
 Gold, contra. 
 
 Per Curiam. It is clear from the case of W aterhouse v. 
 Waite, 1 1 Mass. 207, that it is not incumbent on the officer to cause 
 an execution levied on land to be recorded. But it is his duty to 
 enable the creditor to have it put on record. Merely not return- 
 ing the execution to the clerk's office within three months after 
 the levy, will not in all cases subject him to damages, as appears 
 by the case of Tobey v. Leonard, 15 Mass. 200. But there the 
 execution was returned at the return day ; here it was not ; and the ] 
 court are of opinion, that it not being duly returned so that the 
 plaintiffs might obtain it of the clerk, the sheriff became liable, ' 
 unless he should prove that it was delivered to the plaintiffs in time 
 to have it recorded. No evidence of that sort has been offered. 
 
 We see no valid objection to the admission of the parol evi- ' 
 dence. It did not add to, nor contradict the return, but was intro- 
 duced to show that the land levied on under one description was 
 the same as that which had been attached under a diffeirent de- 
 scription. As to the right of property, it is said that the subse- 
 quently attaching creditors cannot hold the land, for that they had 
 notice of the plaintiffs' attachment ; and the case has been likened 
 to one in which a party has notice of a prior unrecorded deed. 
 But the same principle does not apply in the case of a prior attach- 
 
292 CHARACTER OF THE CREDITORS LIEN OR RIGHT. 
 
 ment. It does not appear that the intervening creditors knew that 
 the plaintiffs would recover a [i/j] judgment and would levy on 
 the land ; and besides, all creditors who are in pursuit of satisfac- 
 tion, of their debts by means of attachment, are considered as run- 
 ning a race on equal ground, and each is entitled to take advantage 
 of defects in the proceedings of the others. See Gushing v. Hurd, 
 4 Pick. 253. 
 
 Many statutes make tlie recording of the levy part of the officer's 
 duty. This is now the case in Mass. To the point that actual notice 
 does not cure failure to record, compare Doe v. Flake, 17 Me. 249. In 
 that case it was held that the second attaching creditor was entitled 
 to priority though he acted as appraiser when the unrecorded first levy 
 was made. The court said he might nevertheless not know that the 
 first levy had not been abandoned. 
 
 10. EFFECT OF THE DEATH OF THE JUDGMENT DEBTOR. 
 
 See Jones v. Jones, ante, p. 276. 
 
 Ordinarily no proceedings in any action can be had after the death - 
 of either party till the action is revived and the representative of the' 
 \ deceased made a party to prosecute or defend. It has generally been 
 \ held in the absence of statutes to the contrary that the death of the dp- ' 
 \ fendant in attachment before judgment dissolves the attachment. But 
 I if he die after judgment the lien survives. See Drake Attachm. § 422. 
 The same is true of the effect of the death of the principal defendant 
 upon garnishment proceedings. So of the death of tne garnishee before -, 
 answer but not afterward. Rood, Garnish. § 381. The death of either j 
 party suspends the right to issue execution, but if issued and levied be- 
 fore the death the officer may proceed and, according to most authori- 
 ties, may levy afterward. See Preem. Ex., §§ 35-37./',' 
 
XII. THE RULE OF PRIORITY, OR WHEN THE LIEN 
 
 ATTACHES. 
 
 -^^ 
 
 1. As TO Writs in the Hands op the Same Ofpiche, 293. 
 
 A. Common Law Rule^ 293. 
 
 B. Rule Under Statute 29, Car. II. v. 3, §§ 13-16, 293. 
 
 C. Modern American Rule, 294r 
 
 a. Eights of Creditor with Senior Writ and Junior Levy, 294. 
 6. Rights of Creditor with Junior. Writ and Senior Levy, 294. 
 
 2. As TO Weits- in the Hands Off Difpeebnt OfpicbeSj 294. 
 
 3. Between Levvins and Gaenishino Ceeditoes, 294. 
 
 1. AS TO WRITS IN THE HANDS OF THE SAME OFFICER. 
 
 A. Common Law Rule. 
 
 See Smallcomb v. Cross, ante, p. 245; Reeves v. Sebern, ante, p. 
 273; Payne v. Drewe, ante, p. 275; Evans v. Barnes, post, p. 302; 
 Jones V. Jones, ante, p. 176. 
 
 B. Rule Under Statute 29, Car. II. c. 3, §§ 13-16. 
 
 See the cases just above cited and Schuylkill County's Appeal, 
 ante, p. 247; Field v. Macullar, ante, p. 252. 
 
 Statute 29 Charles II, Chapter 3, §§ 13, 14, 15 and 16.— A. D., 1677. 
 (Original § 13, cited as §§ 13 and 14.) And whereas it hath beene found 
 mischievous that Judgements in the Kings Courts at Westminster doe 
 many times relate to the first day of the Terme whereof they are en- 
 tred or to the day of the Returne of the Originall or fileing the Bails 
 and binde the Defendants Lands from that time although in trueth they 
 were acknowledged or suffered and signed in the Vacation time after 
 the said Terme whereby many times Purchasers flnde themselves 
 agrieved [§14.] Bee it enacted by the authoritie aforesaid That from 
 and after the said foure and twentyeth day of June any Judge or Officer 
 of any of his Majesty es Courts of Westminster that shall signe any 
 Judgements shall at the signeing of the same without Fee for doeing 
 the same sett downe the day of the moneth and yeare of his soe doeing 
 upon the Paper Booke Dockett or Record which he shall signe which 
 day of the 'moneth and yeare shall be alsoe entred upon the Margent 
 of the Roll of the Record where the said Judgement shall be entred. 
 
 (Original § 14 cited as §15.) And bee it enacted That such Judge- 
 ments as against Purchasers bona flde for valueable consideration of 
 Land Tenements or Hereditaments to be charged thereby shall in con- 
 sideration of Law be Judgements onely from such time as they shtiU be 
 soe signed and shall not relate to the first day of the Terme whereof 
 they are entred or the day of the Returne of the Originall or fileing the 
 
294 THE RULE OF PRIORITY. 
 
 Baile Any Law, Usage or Course of any Court to the contrary notwith- 
 standing. 
 
 (Original § 15 cited as § 16.) And bee it further enacted by tne 
 authoritie aforesaid That from and after the said fower and twentyeth 
 day of June noe Writt of Fieri facias or other Writt of Execution shall 
 binde the Property of the Goods against whome such Writt of Bxeeu 
 tion is sued forth but from the time that such Writt shall be delivered 
 to the Sheriffe Under SherifCe or Coroners to be executed, And for the 
 better manifestation of the said time the Sheriffe Under-Sheriffe and 
 Coroners their Deputyes and Agents shall upon the receipt of any such 
 Writt (without Fee for doeing the same) endorse upon the backe there- 
 of the day of the moneth [or '] yeare whereon he or they received the 
 same. 
 
 Explanation. — The above are §§ 13, 14 and 15, of the statute as they 
 appear in the "Statutes of the Realm" Vol. 5 p. 841, published m London 
 in 1819, "printed by command of His Majesiy King George the Third," 
 etc. Shortly after the statute was enacted some careless scribe divided 
 § 13 numbering the last part of it § 14 and all the succeeding sections 
 one number greater than each bears In the original statute. This 
 blunder has been copied by all the succeeding unauthorized editions of 
 the statute, and §§14 and 15 are always cited as §§ 15 and 16 and the 
 same is true of all that follow. See Throop on Verbal Agreements, p. 30. ') 
 In the Statute of the Realm the section numbers are in the margin in 
 Roman numerals. I have inserted in § 13, at the place where the divis- 
 ion was made, [§ 14] that the student may note the part which is cited 
 as § 14. The [or i] in the last section is as it appears in the Statutes 
 of the Realm, which is explained at the foot of the page by the note: 
 " and" O. omitted. 
 
 C. Modern American Rule. 
 
 a. RIGHTS OF CREDITOR WITH SENIOR WRIT AND JUNIOR 
 LEVY. 
 See Knox v. Webster, ante, p. 255; Albrecht v. Long, ante, p. 257; 
 Russell V. Lawton, ante, p. 261. 
 
 h. RIGHTS OF CREDITOR WITH JUNIOR WRIT AND SENIOR 
 LEVY. 
 See cases cited just above. 
 
 2. AS TO WRITS IN THE HANDS OF DIFFERENT OFFICERS. 
 
 By the cases just cited this will be eeen to be an immaterial fact 
 under the modern American rule if a conflict of jurisdiction is not in- 
 volved. My query is as to its importance under the other rules. See 
 Payne v. Drewe, ante, p. 275, and notes to same. 
 
 3. BETWEEN LEVYING AND GARNISHING CREDITORS. 
 
 See Erskine v. Staley, ante, p. 282. 
 
 4. BETWEEN SOVEREIGN AND CITIZEN. 
 
 See Jones v. Jones, ante, at page 178. 
 
XIII. HOW THE CREDITOR'S LIEN OR RIGHT MAY 
 BE LOST OR BECOME SUBORDINATE. 
 
 1. By Payment of the Demand, 295. 
 
 2. By Express Release, 295. 
 
 3. By Abandonment ok Laches, 295. 
 
 A. Justifiahle Abandonment hy the OHicer^ 295. 
 
 B. Unjustifiable Abandonment by the Officer^ 298. 
 
 C. Abuse of Process in Failmg to Prosecute^ 298. 
 
 D. Talcing Out Hew Writ and Making Second Levy, 302. 
 
 E. Electing One of Several Remedies, 304. 
 
 4. By Setting Aside the Judgment on Which the Pbocess was Based, 
 
 307. 
 
 5. By Judgment in Favok of the Defendant in the Attachment, 307. 
 
 6. By the Defendant Giving the Cebditob Bond on Replevin, Appeal, 
 
 Eeeoe, Supehsbdeas, Injunction, &c., 311. 
 
 7. By a Similar Bond Given by a Claimant, 314. 
 
 1. BY PAYMENT OF THE DEMAND. 
 
 See Wills V. Chandler, ante, p. 81. 
 
 2. BY EXPRESS RELEASE. 
 
 See Wills v. Chandler, ante, p. 81. 
 
 3. BY ABANDONMENT OR LACHES. 
 
 A. Justifiable Abandonment by tine Officer. 
 SMITH V. OSGOOD. 
 46 New Hampshire 178. (1865) 
 
 Trustee Process — Officer's Right to Indemnity — Right to Abandon If 
 Not Idemnified — Rights of Junior Creditor Who Indemnifies — 
 Liability of Officer for Failure to Return Process — 
 When Proceeds of Sale May be Applied. 
 
 Trustee process by Smith against J. T. Osgood, principal 
 debtor, and N. G. Ordway as his trustee. Abel Proctor & Son 
 intervene as claimants. Case reserved for determination by the 
 whole court. Trustee discharged. 
 
 Ordway seized some hemlock bark on several attachments 
 against said Osgood, two in favor of Proctor & Son being the 
 latest. Then Page claimed the bark and Ordway demanded in- 
 demnity from the attaching creditors, but P. & Son were the only 
 
296 HOW THE LIEN MAY BE LOST. 
 
 ones who gave it. Page then sued Ordway in trover for the value 
 of the bark, which suit P. & Son successfully defended, without 
 the aid of any of the other attaching creditors, all of whom knew 
 of it. All of the attachment suits were prosecuted to judgment, 
 executions thereon duly issued and delivered to Ordway, who then 
 sold the bark thereon for $403, which he had in his hands when 
 this action was -brought to charge him as trustee of Osgood there- 
 for. 
 
 Flint and George, Foster & Sanborn, for plaintifif. 
 
 A. & F. A. Fowler, for trustee. 
 
 Morrison, Stanley & Clark, for claimants. 
 
 The Court by Sargent, J. Where an officer is requested to 
 attach property on a writ, if the title is doubtful he may demand 
 an indemnity of the creditor before attaching it, and if such indem- 
 nity is not given he is under no obligation to attach it. Perkins 
 V. Pitman, 34 N. H. 261 ; Bond v. Ward, 7 Mass. 123. So where 
 the officer is directed to arrest the body of a debtor, if he has 
 doubts about the propriety of the arrest, he may demand a like in- 
 demnity, and unless he receive it he is not obliged to make the ar- 
 rest. Marsh v. Gold, 19 Mass. (2 Pick.) 284, 290. 
 
 The question here arises, whether, after the officer has at- 
 tached property on mesne process without any controversy about 
 the title at the time, and he is afterwards proceeding to sell the 
 same upon the writ, or upon the execution after judgment, and 
 third persons then step in and claim the property and forbid the 
 officer to sell the same, it is the duty of the officer to sell the prop- 
 erty at his peril, or whether he may then demand of the creditor 
 an indemnity, and refuse to sell unless such indemnity is given. 
 
 In this case it seems that all the executions were placed in the 
 officer's hands within thirty days from the rendition of judgment 
 and if no indemnity had been claimed the property attached should 
 have been applied in the order of the attachments. If the contro- 
 versy as to the title had arisen in this case at the time of the at- 
 tachment, and an indemnity had been demanded, there is no doubt 
 that for the benefit of such creditors as gave the required indem- 
 nity, the officer must proceed and make the attachments in their 
 order, and might decline to do anything for the others who did 
 
BY ABANDONMENT OR LACHES. 287 
 
 not give the indemnity, and we think the same rule should be ap- 
 plied in this case. We assume in this case, though the case is not 
 quite explicit on that point, that the officer not only notified z\l the 
 creditors but that he made them understand fully the situation of 
 the case, and demanded of them in terms the indemnity, and that 
 they decided .deliberately not to furnish the indemnity and risk the 
 consequences. The officer should do this business so that there 
 should be no room for misunderstanding or collusion. Page made 
 his claim on the bark and insisted upon it, and brought his suit 
 against the officer. These claimants gave the indemnity which 
 the officer demanded. The other creditors did not. It would 
 hardly be equitable now that the other creditorsj who have stood 
 by and neither given any indemnity nor assisted in the defense of 
 the suit against the officer, should receive the whole benefit of the 
 claimants' industry and money in defending that suit, and of their 
 indemnifying bond, while the claimants themselves get nothing 
 for their trouble and expense, nor any part of their claim, [i8o] 
 while those who incurred no liability and who did nothing, get the 
 whole. 
 
 We think, in this case, if no one had indemnified, the officer 
 might properly have refused to sell, and all the creditors would 
 have been estopped to sue the officer, so far at least as the property 
 claimed by Page was concerned, and that, as it was, he was only 
 obliged to sell such property on the claimants' execution. No 
 question is here raised toncerning the application of any surplus 
 after paying claimants' debt, for the case finds that the avails of 
 the whole bark are not sufficient to pay the first execution of these 
 claimants. 
 
 But the plaintiff claims that, because the officer did not mfike 
 the application upon the execution at the time, he cannot now do 
 so, but that the money belongs to Osgood, the principal defendant, 
 and can be held in this suit in the hands of the officer as trustee. 
 But we cannot so regard it. If the property in this case had been 
 delivered to a receipter, who had refused to deliver it on demand, 
 and, after execution was recovered, the officer had brought suit on 
 the receipt, and had after a long time recovered, and suppose he 
 had kept his execution till the termination of the suit, though long 
 
298 HOW THE LIEN MAY BE LOST. 
 
 after the return day of the execution, could he not be allowed to 
 apply the property on the execution ? It might have been the more 
 proper course for the officer in each case to return his execution 
 on the return day, making return of whatever he had done up to 
 that time, and take a new one on which to make a future return. 
 In this case the officer delayed from uncertainty as to which exe- 
 cution he should make the application upon. He should perhaps 
 have returned them with his doings, and asked directions from the 
 court as to the application of the money. But this suit was soon 
 brought in which the officer's liability would be settled, and he has 
 waited till now. We think he may now make the application, and 
 that no one but the creditor can complain of the delay, who is the 
 
 claimant in this case. 
 
 Trustee discharged. 
 
 Compare Schuylkill County's Appeal, ante, p. 247., and notes to 
 same. 
 
 A constable sued for releasing goods for want of indemnity after 
 expressing satisfaction with the indemnity given, is liable. "If, as the 
 constable said, property in the goods was claimed by another, he was 
 not bound to proceed unless suflaoient indemnity was given; but havinp 
 demanded and accepted indemnity, the situation of affairs is entirely al- 
 tered. He is compelled on his part to proceed to a sale of the goods^ 
 and must look to his bond for indemnity." Corson v. Hunt, 14 Pa. St. 
 510, 53 Am. Dec. 368. 
 
 B. Unjustifiable Abandonment by tlie Officer. 
 See McGarry v Lewis Coal Co., ante, p. 280. 
 
 C. Abuse of Process in Failing to Prosecute. 
 
 ACTON v. KNOWLES. 
 14 Ohio St. i8. (1862) 
 
 Sheriffs — Liability for Failure to IVlake Amount of Execution — ■Diligenc& 
 
 Required of Execution Creditor — How far Affected by Negligence 
 
 of Officer^ — Jury's Province — Duty of Officer and Creditor 
 
 if Not Time to Sell before Return Day. 
 
 Action by Acton & Woodnutt, against Horace C. Knowles, 
 sheriff of Athens county, for making a false return to two execu- 
 tions in favor of plaintiffs, one a H. fa., the other a venditioni ex- 
 ponas, the returns complained of being that the stallion levied on 
 under plaintiff's £. fa. was subject to a previous levy by a former 
 sheriff in favor of ^another creditor, returned "not sold for want of 
 
BY ABANDONMENT OR LACHES. 299 
 
 time." From judgment for defendant and order denying motion 
 for new trial, plaintiffs bring error. Reversed. 
 
 W. R. Golden, for plaintiffs. 
 
 A. G. Brown & James Wilcox, for defendant. 
 
 The Court by Peck, C. J. * * * Ch. J. Savage, in Russell v. 
 Gibbs, 5 Cow. 390, examines, at some length, the English and New 
 York cases as to the effect of delay in the sale of property levied 
 on execution, and arrives at the conclusion, that mere indulgence 
 or negligence of the sheriff to proceed and sell, without any act of 
 the plaintiff, will- not render the levy fraudulent as to subsequent 
 executions ; but that the rule is otherwise where the creditor him- 
 self directs or sanctions such delay. It is also said in that case, 
 that an unreasonable delay or omission to urge the sheriff to do his 
 duty, may, in some cases, be construed into a consent on the part 
 of the creditor to such delay, and thus postpone his lien to that of 
 junior executions. These positions, thus qualified, are fully sus- 
 tained by the authorities cited in the opinion, and supported by 
 subsequent decisions in that and other states. Butler v. Maynard, 
 II Wend. 548, 552 ; Benjamins. Smith, 4 lb. 332 ; Knower v. Bar- 
 nard, 5 Hill, 377; Herkimer County Bank v. Brown, 6 lb. 232; 
 U. S. V. Conyngham, 4 Dall. (Pa.) 358; Gwynne on Sheriffs, 212 
 and cases cited. 
 
 It is said by Branson, J., in 6 Hill, supra, that "in all the cases 
 where the first execution has lost its preference, something was 
 said by the plaintiff or his attorney, at the time the execution was 
 issued, or at some subsequent period, from which [28] the sheriff 
 could reasonably infer that he was authorized to give indulgence, 
 instead of complying strictly with the command of the writ." 
 
 In New York the common law doctrine prevails, that the 
 .execution of the writ is an entirety, consequently, the officer 
 making a levy on execution, must complete the duty by a sale in 
 pursuance of its mandate, and a subsequent venditioni exponas, or 
 distringas, if issued to him, confers no new or additional authority, 
 but only spurs him on, it is said, to a speedier execution of the 
 power already conferred. Under our practice, however, a sheriff 
 who has returned the writ "levied, but not sold for want of time," 
 
300 HOW THE LIEN MAY BE LOST. 
 
 can not be required to proceed and sell until a vendi. is placed in 
 his hands, for that purpose, by the creditor in execution. 
 
 The rule deducible from the cases cited, as applicable to our 
 practice, in which, after return of execution "not sold for want of 
 time," the plaintiff must himself initiate the further proceedings 
 to sell, is this, — that if there has been an unreasonable delay in 
 completing the execution by a sale, at the instance and by the 
 authority of the plaintiff, such unreasonable delay may have the 
 effect of postponing his, in a certain sense, dormant process, to 
 that of a more vigilant though junior execution creditor. Mere 
 delay, if not unreasonably protracted, will not have such effect; 
 but where the delay is unreasonable, in view of the rights of other 
 creditors, the character and condition of the property levied on, 
 and the uses to which it is, in the meantime, applied, it is just and 
 proper that a limit should be placed upon the indulgence of the 
 creditor holding such prior lien. 
 
 The question whether such delay was reasonable or unreason- 
 able in a given case, depends upon its particular circumstances and 
 is therefore peculiarly a question for the jury, under the instruc- 
 tions of the court. It is manifest that a delay which is unreason- 
 able in one case, by reason of the condition of the parties or the 
 subject matter of the levy, would, under other circumstances, be 
 altos:ether reasonable and proper. 
 
 The return of the property to the defendant after levy, to be 
 kept by him until required for sale, either with or without [^p] 
 security for its re-delivery, does not per se avoid the levy. The 
 debtor thereby became the bailee of the property, and the officer 
 was still constructively in possession. But such fact, coupled with 
 others, relating to the intended duration of such possession; the 
 authority delegated to the debtor or exercised by him with the 
 knowledge and assent of the sheriff ; the uses to which it was, in 
 the meantime, to be applied ; the benefits, if any, resulting from its 
 custody, and the subsequent delay in bringing the property to sale, 
 may be of much significance in determining whether the levy was 
 not, in part at least, designed to protect the property from seizure 
 by other creditors, for the benefit of the debtor, and therefore 
 fraudulent as to them. 
 
BY ABANDONMENT OR LACHES. 301 
 
 In the case at bar, an execution in favor of the Exchange 
 Bank of Columbus was levied September ii, 1857, upon a stallion, 
 the property of Currier, and the execution thereupon returned to 
 Franklin common pleas, "not sold for want of time." No further ; 
 execution was issued until November 3, 1858, nearly fourteen ; 
 months after return of the first, and more than four months after' 
 a levy by plaintiffs upon the same property. The sheriff 
 upon making the levy returned the horse to defendant Cur- 
 rier, and permitted him to hire the horse out the ensuing season 
 for his own benefit, the profits greatly exceeding all expenses of 
 keeping, and never interposed to prohibit such use, or claim for 
 the execution creditor any part of the profits arising therefrom. 
 
 The officers of the bank may not have known how the horse 
 was disposed of ; but if so, they were willfully blind. The infor- 
 mation conveyed by the return was sufficient to put them, as pru- 
 dent men, upon inquiry as to the temporary disposition of the 
 horse. The question would naturally occur, how and at whose 
 expense is this horse to be supported while awaiting a sale ? And 
 the answer to such inquiry, would, at once, have put them in pos- 
 session of the facts, and rendered them responsible for fvirther 
 continuance of that condition of things. If, on the other hand, the 
 bank and its officers were truly ignorant of the temporary dispo- 
 sition of the horse, and the authority conferred upon Currier, and 
 are not chargeable [jo] with notice of the acts of the officer in 
 making disposition of the property levied on, which we by no 
 means concede, still a failure by them for more than fourteen 
 months thereafter to offer the horse for sale, would be a circum- 
 stance for the consideration of the jury, as tending to show that 
 one, if not the principal object of the levy and its prolongation, 
 was to shield the property from a seizure by other creditors for the 
 benfefit of the debtor. 
 
 In view of these circumstances it was error, we conceive, in 
 the court to charge the jury, either as matter of law or as a fore- 
 gone conclusion of fact, that the levy of September lu 1857, was, 
 as against the plaintiffs, a valid and substituting levy in June, 
 1858, when the horse was seized under their execution. 
 
 It was a question 6f fact peculiarly within the province of the 
 
302 HOW THE I.IEN MAY BE LOST. 
 
 jury, to determine, under all the circumstances before them tend- 
 ing to show an abuse or perversion of the process of the court, and 
 should have been submitted to them under proper instructions. 
 * * * 
 
 Judgment reversed and cause remanded. 
 
 This looks like a clear case under the rule as stated by the court, 
 which is as generally stated. Nevertheless some courts hold to a much 
 stricter rule. For example, in a recent case, the first creditor was held 
 to have lost his priority by reason of consenting to a postponement of 
 the sale from Jan. 22 to Jan. 29, and then to Feb. 8, and then to Feb. 11, 
 and then to Feb. 13, to enable the debtor to get money to make pay- 
 ment and thus save his property, it being found that the action of the 
 creditor was prompted by kindness to the debtor, without intent to 
 delay or defraud other creditors, and although other creditors) were not 
 prejudiced thereby. Sweetser v. Matson, 153 111. 568, 46 Am. St. Rep. 
 911, 39 N. E. 1086. 
 
 D. Taking Out New Writ and IVIalting Second Levy. 
 
 EVANS V. BARNES. 
 32 Tennessee (2 Swan) 291. (1852) 
 
 Executions — Effect of Taking Out New Writ and iVlaking Second Levy — 
 
 Power to Sell After Return Day — Power of Sheriff After Term of 
 
 Office Expires — Cliaracter of Ventitioni Exponas — When Lien 
 
 Attaches, Rights of Bona Fide Purchasers. 
 
 Trover by Evans against Barnes for cotton mentioned in the 
 opinion. From judgment for defendant plaintiff brings error. 
 Affirmed. 
 
 Meigs, for plaintiff. ' 
 
 Cox, for defendant. 
 
 The Court by Caruthers, J. On the 8th day of November, 
 1850, the plaintiff bought of Ransford McGregor the six bales of 
 cotton for which this action of trover was brought. On the same 
 day the clerk of Rutherford circuit court issued an execution 
 on a judgment in favor of B. Ferguson, against said McGregor, 
 tested July term, 1850, addressed to the defendant as sheriff of 
 Davidson county, who, by his deputy, levied the same upon the 
 cotton on the i ith of November, 1850, the return day of the execu- 
 tion. This writ was returned, with the levy, to the November 
 term, [^pj] from which another fieri facias issued, tested second' 
 Monday of November, 1850,' on same judgment, which came to 
 
BY ABANDONMENT OR LACHES. 303 
 
 the hands of defendant on November 20th, and was on same day 
 levied upon the cotton, which was sold, December 5th, for $355.73, 
 as appears by the return on the last iieri facias. It does not ap- 
 pear by whom the last execution was ordered out. * * * 
 
 The levy of the execution vested in the sheriff a special prop- 
 erty in the cotton, and was a satisfaction to the_ extent of its value. 
 He became liable to the plaintiff in the execution, and the debt was 
 extinguished for that amount. The execution was a lien from its 
 test, se'cond Monday in July, 1850, and overreached the 
 title by purchase of the plaintiff's. The power of the sheriff 
 to sell the property still continued after the return of the writ, and 
 even after the expiration of his term of office. Overton v. Per- 
 kins, 10 Yerg. 328. The authorities all concur in this position, in 
 cases of levies upon personal estate. It is otherwise when the levy 
 is upon land. 
 
 But it is contended in this case that the sale having been made 
 under an alias fieri facias, which was issued from the November 
 term, 1850, of Rutherford circuit court, and tested on the twelfth 
 day of that month, which was .after the purchase of the plaintiff's, 
 the first levy was waived, and the right by purchase must prevail. 
 We do not think so. It is true that the plaintiff in the execution 
 might waive the benefit of a levy in his favor [^p^] and release the 
 sheriff from his liability and the property from the custody of the 
 law, in which case the original owner would have the power to 
 make a valid sale of it. But such waiver must be distinctly and 
 clearly proved. . It is not enough, to produce this effect, that an- 
 other -fieri facias was issued, which the sheriff re-levies upon the 
 same property, and makes his sale upon it. He had a perfect 
 right to sell, by virtue of the title vested in him by the first levy, 
 without any execution; or, he might have retained the first execu- 
 tion and sold under it during the term to which it was returnable, 
 or after the term, when it was functus officio. The issue of an 
 alias, or another order qf sale, was not necessary to continue his 
 right under the previous levy. Even the taking of a delivery bond, 
 on a levy afterwards made on the same execution, or an alias, 
 without forfeiture, would not be a waiver of his title, or a forfeit- 
 ure of his right to sell under the first levy. Lester's Case, 4 
 
304 HOW THE LIEN MAY BE LOST. 
 
 ■i) 
 
 Humph. 383. The issuance and use of the last execution was 
 merely nugatory and useless ; at least it did not affect his right to 
 the property derived from his original levy, which related to, and 
 bound, the property from the test of the first execution, on the 
 second Monday in July, 1850. 
 
 Let the judgment of the circuit court be affirmed. 
 To the same effect as to sale under alias instead of vendi. See Bou- 
 ton V. Lord, 10 Oiiio, St. 453 ; West v. St. Jolan, 63 Iowa, 287, 19 N. W. 
 238; Priyer v. McNaughtoa, 110 Mich. 22, 67 N. W. 978; Menge v. 
 Wiley, 100 Pa. St. 617; Contra Scott v. Hill, 2 Humph. 143. 
 
 B. Electing One of Several Remedies. 
 
 ROCKHILL V. HANNA. 
 56 United States (15 Howard) 189. (1853) 
 
 Judgment Liens — Rights of Priority, Fractions of a Day — Election of 
 Remedies — Effect of First Execution. 
 
 Action by Thos. C. Rockhill et al. against Robert Hanna et al., 
 on a U. S. marshal's bond, to recover the proceeds of an execution 
 sale. The case is certified here by the U. S. Circuit Court for 
 District of Indiana, for the opinion of this court. Rockhill et al.. 
 Price et al. and Siter et al., each recovered judgments against John 
 Allen, Nov. 19, 1838. Price and Siter each took out H. fas. which 
 were levied on Allen's land. But previous thereto Rockhill had 
 taken out ca. sa. on which Allen was imprisoned till discharged by 
 the passage of a law in Indiana abolishing imprisonment for debt. 
 Rockhill then took out H. fa. which was levied on the land pre- 
 viously taken on the other fi. fas. The land being sold under these 
 executions, and the proceeds being insufficient to pay all, Rockhill 
 claimed that the money should be first applied on his judgment. 
 Thompson, Morrison and Mayor, for plaintiffs. 
 0. H. Smith, for defendants. 
 1 The Court by Grier, /. * * * In the state of Indiana judg- 
 
 ; ments are liens upon "the real estate of the persons against whom 
 ' such judgments may be rendered, from the day of the rendition 
 / thereof." As the statute provides for no ffactionsTif a^ay, it fol- 
 lows that all judgments entered on the same day have equal rights, 
 and one cannot claim priority over the other. In England, when 
 several judgments are entered to the same term, (and by fiction of 
 
BY ABANDONMENT OR LACHES. 305 
 
 law, the term consists of but one day,) the judgment creditor, who 
 first extends the land by elegit, is thereby entitled to be first satis- 
 fied out of it. The case would be much stronger, too, in favor of 
 the first elegit, if one of three judgments had levied a fi. fa. on the 
 goods and chattels of the defendant, the second taken his body on 
 ca. sa., and the third laid his elegit on his land. For each 
 one, having elected a different remedy, would be entitled to a pre- 
 cedence in that which he has elected. This principle of the com- 
 mon law has been adopted by the courts of New York ,as is seen 
 in the cases of Adams v. Dyer, 8 Johns. 350, and Waterman v. 
 Haskin, 1 1 Johns. 228 ; and also by the supreme court of Indiana, 
 in Michaels v. Boyd, Smith 100, where it is said, the mere delivery 
 of an execution, as in case of personal property, will not give a 
 priority, but the execution first begun to be executed, shall be en- 
 titled to priority. 
 
 The application of these principles to the present case would 
 give the preference to the judgments of Siter and Price, which 
 were levied on the land five years before the plaintiff's levy on the 
 same. An execution levied on land, is begun to be executed, and 
 is an election of the remedy by sale of it; and [196] the mere 
 delay of the sale, if not fraudulent, injures no one and cannot post- 
 pone the rights of the creditor who has first seized the land and 
 taken it into the custody of the law for the purpose of obtaining 
 satisfaction of his judgment. If he has obtained a priority over 
 those whose liens are of equal date, by levying his execution, he is. 
 not bound to commence a new race of diligence with those whose 
 rights are postponed to his own. There may be a different rule as 
 to a levy on personal property, where it is suffered to remain in the 
 hands of the debtor. But liens on real estate are matters of record 
 and notice to all the world, and have no other limit to their dura- i 
 tion than that assigned by the law. 
 
 But we do not think it necessary to rest the decision of this 
 case, merely on the question of diligence, or to decide whether this 
 doctrine has been finally established as the law of Indiana. The 
 plaintiff's lien does not, by the statement of this case, stand on an 
 equality as to date with that of the other judgments. By electing- 
 to take the body of his debtor in execution he has postponed his. 
 
306 HOW THE LIEN MAY BE LOST. 
 
 lien, because the arrest operated in law as an extinguishment of 
 his judgment. It is true, if the debtor should die in prison, or be 
 discharged by act of the law without consent of the creditor, he 
 may have an action on the judgment, or leave to have other execU' 
 tions against the property of his creditor. The legal satisfaction 
 of the judgment, which for the time destroys its lien and postpones 
 his rights to those whose liens continue, is not a satisfaction of the 
 debt, but, as between the parties to the judgment, it operates as a 
 satisfaction thereof. The arrest waives and extinguishes all other 
 remedies on the goods or lands of the debtor while the imprison- 
 ment continues, and if the debtor be discharged by the consent of 
 the creditor, the judgment is forever extinguished, and the plain- 
 tiff remitted to such contracts or securities as he has taken as the 
 price of the discharge. But if the plaintiff be remitted to other 
 remedies by a discharge of his debtor by act of law, or by an 
 escape, it will not operate to restore his lien on the debtor's prop- 
 erty, which he has elected to waive or abandon as against credi- 
 tors who have obtained a precedence during such suspension. The 
 case of Snead v. M'Coidl, 12 How. 407, in this court, fully estab- 
 lishes this doctrine. It is to be found in the common law as early 
 as the Year Books, and is admitted to be the law in almost every 
 'State in the Union. See Year Book, 33 Henry VI. p. 48 ; Foster 
 V. Jackson, Hobart 52 ; Burnaby's case, i Strange, 653 ; Vigers v. 
 Aldrich, 4 Burr. 2482 ; Jaques v. Withy, i Term R. 557; Taylor v. 
 Waters, 5 Maule and Selwyn, 103 ; Ex parte Knowell, 13 Vesey, 
 Jr., 102; and in New York, Cooper v. Bigalow, 1 Cow. 56; Ran- 
 som V. Keys, 9 ^197^ Cow. 128; Sunderland v. Loder, 5 Wend. 
 58. In Pennsylvania, Sharpe'v. Speckenagle, 3 Serg. & R. 463; 
 In Massachusetts, Little v. The Bank, 14 Mass. 443. 
 
 The insolvent law of Indiana which discharges the person of 
 the debtor from imprisonment upon his assigning all his property 
 for the benefit of his creditors, provides that his after acquired 
 property shall be liable to seizure, and also that liens previously 
 acquired shall not be affected by such assignment and discharge; 
 but it does not affect to change the relative priority of lien credit- 
 ors, as it existed at the time of the discharge, or to take away from 
 any lien creditor his prior right of satisfaction, which had been 
 
BY JUDGMENT FOR DEFENDANT. 307 
 
 vested in him previous to such discharge. Neither the letter nor 
 
 spirit of the act will permit a construction by which a retrospective 
 
 operation would divest rights vested before its passage. 
 
 We are of opinion, therefore, that * * * the executions of 
 
 Siter & Co. and of Price & Co. are entitled to be first satisfied from 
 
 the proceeds of the sale. 
 
 So certified to the said circuit court. 
 
 4. BY SETTING ASIDE THE JUDGMENT ON WHICH THE PROC- 
 
 ESS WAS BASED. 
 
 See Field v. MacuUar, ante, p. 252; Reid v. Lindsey, post, p. 314, 
 and notes to same. 
 
 5. BY JUDGMENT IN FAVOR OF THE DEFENDANT IN THE AT- 
 
 TACHMENT. 
 
 ERICKSON V. DULUTH, SOUTH SHORE & ATLANTIC RY. CO. 
 IDS Michigan 415, 63 N. W- 420. (1895) 
 
 Garnishment — Effect on Non-Suit in Main Action — Effect of Appeal — 
 Powers of Lower Court While Appeal Is Pending — Garnish- 
 ment an Action or an Ancillary Proceeding. 
 
 Garnishment by Edward Erickson against Duluth, Soutfi 
 Shore & Atlantic Ry. Co. as garnishee of Mark Cuppernill, princi- 
 pal defendant. From judgment charging the garnishee it brings 
 error. Reversed. 
 
 Erickson sued Cuppernill in justice court and immediately 
 had the railway company summoned as garnishee, and it ans- 
 wered confessing liability for $39.65. Thereafter the main action 
 was tried and the justice rendered judgment, no cause of action. 
 Plaintiff appealed to the circiut court, giving the garnishee notice 
 thereof, and the justice returned the record in the main action to 
 the circuit court without the record of the garnishment proceed- 
 ings, and thereafter mailed a discharge to the garnishee, and still 
 later returned the garnishment record to the circuit court, showing 
 the discharge above mentioned. On the trial of the mam action in 
 the circuit court judgment was rendered for plaintiff, and imme- 
 diately thereafter, on motion of plaintiff's attorney, judgment was 
 rendered against the garnishee for the amount admitted in its 
 answer. The garnishee having made no appearance in that court, 
 claims that it acted without jurisdiction in rendering judgment 
 
308 HOW THE LIEN MAY BE LOST. 
 
 against the garnishee because the judgment for defendant, by stat- 
 ute terminated the HabiUty of the garnishee ; and at all events the 
 liabilitiy could not thereafter be enforced, because the statute does 
 not provide for any further proceedings. 
 
 A. E. Miller, for garnishee. 
 
 John R. Rood, for plaintiff. 
 
 The Court by Hooker, J.*** While § 8041 (How. St.) treats 
 plaintiff's failure to recover "judgment against the defendant" as 
 a discontinuance, § 8038 provides that, after the "final determina- 
 tion of the suit against the defendant," proceedings may be taken 
 before the justice to obtain a judgment against the garnishee. 
 This is consistent with the claim of plaintiff that the garnishee is 
 not released by a judgment in favor of defendant unless it is final. 
 Section 8040 also contains the expression "final determination," 
 and prescribes the pleading and procedure against the garnishee 
 " after a final determinaton of the suit pending against the defend- 
 ant." It would require an unusually strict construction of § 8041, 
 and the exclusion of the other sections, to hold that the garnishee 
 would be released by a judgment in justice's court in the defend- 
 ant's favor, when the plaintiff had appealed. Such construction 
 would be at variance with the rule in attachment cases, it having 
 been held that a judgment against a plaintiff, appealed from, does 
 not dissolve the attachment, but the lien of the writ continues until 
 the final disposition of the case against him. Treat v. Dunham, 
 74 Mich. 114; Vanderhoof v. Prendergast, 94 Id. 18. - By analogy 
 the same would be true in garnishment cases, unless the statute 
 upon which the right depends indicates the contrary. The gar- 
 nishee, under this chapter, would be discharged when the action 
 was finally determined against the plaintiff, but he is chargeable 
 with knowledge of the law which gives the right of appeal, and 
 .that, if the appeal is taken, he is not released until final judgment. 
 The supreme court of Iowa has held that a judgment of nonsuit 
 dissolves an attachment, and that it will not be revived by the 
 vacating of the judgment. Brown v. Harris, 2 G. Greene, (Iowa) 
 505; Harrow v. Lyon, 3 Id. 157, 159. See, also Clap v. Bell, 4 
 Mass. 99; Suydam v. Huggerford, 40 Mass, (23 Pick.) 465. But 
 the latter case recognizes [419] the rule that the attachment is 
 
BY JUDGMENT FOR DEFENDANT. 309' 
 
 not dissolved where the plaintiff appeals. See, also, Sherrod v. 
 Davis, 17 Ala. 312 ; Danforth v. Rupert, li Iowa, 547, 551. Such 
 has already been shown to be the rule here. In Dolby v. Tingley, 
 9 Neb. 412, 416, .the court said: "Where no steps are taken to 
 dissolve the attachment, the garnishee is bound from the time of 
 service until final judgment." Chase v. Foster, 9 Iowa, 429 ; Ken^ 
 nedy v. Tiernay, 14 R. I. 528, 530 ; Puff v. Huchter, 78 Ky. 146. 
 It is true that these decisions all depend upon the statutes of their 
 respective states, but they show the trend of the authorities when 
 the statutes are open to the construction that the garnishee is 
 bound until final judgment. 
 
 We have next to inquire concerning the effect of the new sec- 
 tion added in 1891 (Act No. 178, Laws of 1891, § 28), and the 
 justice's order under it. This section provides: "In all cases 
 where the defendant prevails or takes an appeal in the principal 
 suit, the c'ourt shall make an order releasing said moneys so gar- 
 nished. Said order shall be directed to the garnishee defendant, 
 and shall be delivered to the principal defendant * * * " 
 
 It must be read with those already discussed, for the latter 
 are not repealed. Unless we are to adhere to the defendant's con- 
 struction, viz., that this section means that the justice shall dis- 
 charge the garnishee in cases where the defendant prevails before 
 the justice in the principal suit, this section is not inconsistent with 
 the sections already discussed, and the construction herein placed 
 upon them. If it is to be so construed, it is inconsistent with them. 
 It is also noticeable that this section does not provide that the jus- 
 tice, but that the court, shall make the order of discharge, thiis' 
 putting it into the power of whatever court shall render the final 
 judgment to make this order. It seems to be intended that [420] ' 
 this order shall be made upon application of the principal defend- 
 ant, and for his benefit, and apparently was designed to facilitate 
 the collection of his claim from the garnishee, after the garnishee's 
 liability to the plaintiff. should have ceased. We are therefore of 
 the opinion that the adverse judgment did not release the gar- 
 nishee from the plaintiff's claim. 
 
 Authorities will be found which indicate that the plaintiff 
 should have appealed from the order discharging the garnishee, 
 
310 HOW THE LIEN MAY BE LOST. 
 
 and that, not having done so, he cannot now question it. Such a 
 case is Brown v. Tuppeny, 24 Kan. 29. See, also, 8 Amer. & Eng. 
 Enc. Law, 1258. Under the statutes cited, the justice had no 
 authority to do more in the-garnishee case than to take and file the 
 disclosure, and adjourn the proceeding until judgment should be 
 rendered; and we have already said that this means final judg- 
 ment. The appeal removed the principal case from his jurisdic- 
 tion, and thereafter only the circuit court had authority to make 
 the order of discharge. The order made by the justice was made 
 before the appeal was taken, and was premature. He had no 
 authority to make it. He should have waited the statutory period 
 within which the plaintiff might appeal. His order was therefore 
 void, and it was not necessary for the plaintiff to appeal from it. 
 The case of Kennedy v. Tiernay, 14 R. I. 530, involves this ques- 
 tion. The court said : "The court is not called upon to pass upon 
 the liability of the garnishee until the plaintiff has established his 
 claim, and obtained a judgment against the defendant. If the 
 plaintiff fails in the suit against the defendant, the question of the 
 garnishee's liability does not arise." In this case the court held 
 that the appeal brought up the garnishee proceedings as incident 
 to the principal suit. - 
 
 This brings us to the remaining question in the case, viz., 
 whether the garnishee proceeding was brought to [4211 the cir- 
 cuit by the appeal of the principal suit, so that the circuit court 
 might enter a judgment against the garnishee. The authorities are 
 not harmonious upon this subject. Some cases — like the Rhode 
 Island case cited — hold this doctrine. Counsel for the plaintiff 
 cites several cases to the proposition that the garnishee proceeding 
 is ancillary to the principal case, and must, of necessity, follow -it 
 when it is appealed. But we think this must depend upon the 
 statute, and that our statute clearly shows a contrary intention on 
 the part of the Legislature. * * * 
 
 In our opinion, the statute contemplates that the action in jus- 
 tice's court against the garnishee should remain in abeyance pend- 
 ing the appeal in the principal case. After judgment the justice 
 might issue his summons to show cause, the issue could then be 
 joined, and proof of the circuit court judgment, when introduced, 
 
BY DEFENDANT GIVING BOND. 311 
 
 would furnish the foundation for a judgment against the gar- 
 nishee. Inasmuch as this practice was not [422] followed, we 
 have no alternative but to reverse the judgment. No new trial 
 will be necessary, as the circuit court has no jurisdiction of the 
 proceeding. 
 
 Reversed. 
 
 This is the only decision I am aware of holding that the garnish- 
 ment does not go with the main action if it survives, but a court of 
 error will not consider errors in the garnishment proceedings on error 
 from the judgment in the main action. Judgment discharging the gar- 
 nishee has been held not to be stayed by an appeal in the absence of 
 an express order preserving the plaintiff's lien. Maxwell v. Bank of 
 New Richmond, 101 Wis. 286, 77 N. W. 149; Webb v. Miller, 24 Miss. 
 638. 
 
 In Michigan, now. — "In all cases where the plaintiff shall appeal 
 * * * the justice * * * shall return all garnishment proceedings ancillary 
 to such suit, together with the main action to the court to which the 
 appeal is taken, and thereafter proceedings against the garnishees 
 may be conducted in said last mentioned court in the same manner in 
 all respects as if originally commenced therein." Comp. Laws, (1897) 
 § 1018. 
 
 The decisions are uniform to the effect that appeal from the judg- 
 ment for defendant preserves the lien if plaintiff observes the proper 
 steps. Besides cases cited in the opinion see Munn v. Shannon, 86 
 Iowa, 363; Lowenstein v. Powell, 68 Miss. 73; Ryan Drug Co. v. Pea- 
 cock, 40 Minn. 470; Riley v. Nance, 97 Cal. 203. But compare Maxwell 
 V. Bank of New RicEmond, above. 
 
 6. BY THE DEFENDANT GIVING THE CREDITOR BOND ON RE- 
 PLEVIN, APPEAL, ERROR, SUPERSEDEAS, INJUNC- 
 TION, &c. 
 
 ROCCO V. PARCZYK. 
 77 Tennessee (9 Lea) 328. (1882) 
 
 Appeal by Defendant — Effect on Previous Levy — Realty or Personalty, 
 
 Distinction — Garnishment an Action or an Ancillary Proceeding — 
 
 Jurisdiction of Lower Court While Appeal is Pending. 
 
 Garnishment on Execution in favor of B. Rocco on his judg- 
 ment against Joseph Parczyk, the garnishees summoned being R. 
 D. Frayser, David Corrotti and Union and Planters' Banks. De- 
 fendant having appealed from the judgment against him, the exe- 
 cution was quashed and the garnishees discharged on motion, and 
 plaintiff appeals. 
 
 Jarnigan and Frayser, for plaintiff. 
 
 W. M. Randolph, for principal defendant. 
 
312 HOW THE LIEN MAY BE LOST. 
 
 The Court by McFarland, J. * * * The first question 
 arising upon this appeal is, whether the levy of the execution by 
 garnishments was discharged by the subsequent appeal in error of 
 the defendant in the judgment. Ordinarily the question cannot 
 arise, as no execution issues during the term, and an appeal in 
 error cannot be granted after the term has been adjourned. It can 
 only arise in [333] cases where by special statute execution 
 may issue before the time for appealing has expired. 
 
 It is argued that the appeal in error does not vacate, but only 
 suspends the execution of the judgment below, and hence should 
 not be held to displace or discharge any liens or rights acquired in 
 the meantime. It is assumed to be analogous to a case where a 
 writ of error and supersedeas issues after the levy of an execution, 
 and it may be conceded that the analogy is complete. It may also 
 be conceded that the service of the garnishment fixes a lien upon 
 effects of the debtor or debt due to him from the garnishee equiv- 
 alent in this respect to an actual levy upon personal property. 
 
 We do not find that the effect of a writ of error and super- 
 sedeas from this court as to the levy of an execution issued upon 
 the judgment superseded has been decided. It has been decided, 
 however, that the issuance of an injunction discharges the lien 
 of an execution levied upon personal property, and authorizes the 
 officer to return the property to the debtor: Overton v. Perkins, 8 
 Tenn. (M. & Yer.) 367, 373. And such also has been held to be 
 the effect, of a certiorari and supersedeas to bring up to the circuit 
 court the judgment of a justice of the peace: AlcCamy v. Law- 
 son, 40 Tenn. (3 Head") 256; Littleton v. Yost, 71 Tenn. (3 Lea) 
 267. This seems to us to be in principle identical with the question 
 before us. The effect of the supersedeas, it is true, is simply to 
 supersede and suspend further proceedings and not to reverse or 
 undo what has been done, and so says Judge Caruthers in Mc- 
 Camy v. Lawson: "At [jj-^] first view it would seem that the 
 effect of the supersedeas should only be to suspend the sale, but 
 not to release the property ; and as an original question we might 
 be inclined to so hold, but we consider the contrary, to be too 
 well settled to be now disturbed by the courts." This rule is dif- 
 
BY DEFENDANT GIVING BOND. 313: 
 
 ferent as to a levy upon real estate : See above case and Littleton 
 V. Yost, 3 Lea, 267. 
 
 The exception as to personal property is from necessity, for 
 it would ruin both debtor and creditor if the sheriff is to hold per- 
 sonal goods to the termination of an injunction bill in chancery, or 
 a writ of error and supersedeas in this court. No injury can 
 result to the creditor where bond and security is given, but it does 
 not alter the question that the process is obtained upon the pauper's 
 oath, as held in McCamy v. Lawson. 
 
 In a case like the present another diii&culty would occur. At 
 the time the garnishment process was returned, the cause had been 
 brought to this court by the appeal in error ; it ■^as therefore clear 
 that the circuit court at that time had no jurisdiction to require the 
 answer from the garnishees, and to fender judgment against them 
 if their answer should authorize a judgment. Any decree or judg- 
 ment rendered in the inferior court after the cause is in the su- 
 preme court by writ of error and supersedeas, is without jurisdic- 
 tion and void: Claiborne v. Crockett, 19 Tenn. (Meigs.) 607. 
 
 Hence no steps could have been taken. At most, the court 
 could- only supersede further proceedings. In the event the writ 
 of error and supersedeas should [335} be dismissed without final 
 judgment in this court, the circuit court might proceed, but the 
 process against the garnishees would prftbably in the meantime 
 have been discontinued. Besides, the practice is to render final 
 judgment and award execution from this court. * * * 
 
 If this proposition be considered doubtful, the result in this 
 case must be the same, as the answer of the garnishees does not 
 admit any liability. * j* * [33<^] 
 
 The judgment must therefore he aMrmed. 
 
 Judge Cooper places his concurrence upon the latter ground. 
 
 In some cases the lien is held to be released by the appeal because 
 the sole object of the lien is to secure payment, and after the appeal 
 that is amply secured by the appeal bond. Otis v. Warren, 16 Mass. 
 53; Bushey v. Raths, 45 Mich. 181, 7 N. W. 802; St. Joseph &c. Ey. Co. 
 _v. Casey, 14 Kan. 504; Parker y. Dean, 45 Miss. 408; Bla v. Welch, 9 
 Wis. 395. But in other cases it is held that the lien remains and the 
 appeal bond is a cumulative security. Magill v; Sauer, 20 Gratt. (Va.) 
 540. See also Collins v. Burns, 16 Colo. 7, 26 Pac. 145; McCants v 
 
314 HOW THE LIEN MAY BE LOST. 
 
 Rogers, 3 Brev. (S. Car.) 388, 1 Tread. 443; Peterson v. Wayne Circuit 
 Judge, 108 Mich. 608. 
 
 7. BY A SIMILAR BOND GIVEN BY A CLAIMANT. 
 
 REID V. LINDSEY. 
 104 Pennsylvania St. 156. (1883) 
 
 Debt on bond of indemnity, by Lindsey, Sterrit & Co. against 
 George T. Van Doren, obligor, and Lewis Shanafelt and John C. 
 Reid, sureties, Reid only being served. From judgment for plain- 
 tiffs Reid brings error. Reversed. 
 
 The bond sued on was given by A-^an Doren as general as- 
 signee for creditor^ of David M. Sample, to obtain a stay of execu- 
 tion in favor of plaintiffs herein against said Sample, which, before 
 said assignment, had been levied on Sample's merchandise and 
 store fixtures. Van Doren having petitioned for said stay and that 
 the judgment be opened to let him show the judgment to be exces- 
 \ sive. Afterward the judgment was opened for that purpose, the 
 issue twice retried and judgment finally entered for plaintiff for 
 $822 instead of $923, the amount of the original judgment. In 
 the meantime Sample was adjudicated a bankrupt, but the assignee 
 in bankruptcy never interfered with the goods. 
 
 On the trial of the present action defendant offered to prove 
 the value of the property subject to the levy at the time the last 
 judgment was rendered to show that the greater part of it could 
 have been realized therefrom. This testimony was objected to on 
 the ground that by opening the judgment the lien of the levy was 
 discharged. The objection being sustained and exception taken 
 presents the only question before this court. 
 
 B: J. & A. B. Reid, for defendant Reid. 
 
 W. L. Corbett (/. H. & I. B. Patrick with him), for plaintiffs. 
 
 The Court by Green, J. We decided in Batdorff v Focht, 44 
 Pa. St. (8 Wr.) 195, that the lien of a ft. fa. upon goods levied on 
 under the writ was not lost by reason of a judicial order staying it 
 until a rule taken on part of the defendants should be disposed of, 
 although there was no stipulation in the order staying the writ that 
 its lien should remain. The very question was raised on the rec- 
 ord on distribution of the proceeds of the goods which were sold 
 on a subsequent writ, and the money was awarded to the first writ 
 
BY CLAIMANT GIVING BOND. 315 
 
 upon the express ground that the lien was not lost. The same 
 doctrine was again declared in Bain v. Lyle, 68 Pa. St. (i8 P. F. 
 S.) 60, and although in that case a bond had been given for the 
 return of the goods, it was held to be no substitute for the {i6o\ 
 goods, and that the lien of the execution was not discharged. In 
 Kightlinger's Appeal, loi Pa. St. (5 Out.) 540, these cases were 
 recognized as full authority for the rule, and would certainly have 
 been applied had the circumstances of that case required it. It 
 was unnecessary to do so, but only because an order continuing the 
 lien had been made when the stay of proceedings was granted. 
 The 'rule itself was vindicated by Woodward, J., in Batdofif v, 
 Focht, by the proposition that the lien of H. fa. after levy is a vested 
 lien which cannot be impaired by an interlocutory order. Al- 
 though, as was there said, it is the usual and proper practice to 
 direct that the lien shall remain, when a stay is ordered, it was held 
 to be unnecessary. The judge said, "But where, as in this case, it 
 is omitted, the lien must, nevertheless, be regarded as preserved, 
 for it is one of the vested legal rights of the plaintiff, and can no 
 more be sacrificed by an edict of the court without a hearing than 
 any of his other civil rights, whether of liberty or property." This 
 reasoning is so entirely satisfactory that it need not be extended. 
 In Batdorff v. Focht, and in Kightlinger's Appeal the lien was 
 made effective by awarding priority to the writs in the distribution 
 of the proceeds of the sale of the goods upon subsequent writs, al- 
 though in the latter case an interval of nearly four years elapsed 
 between the granting and discharge of the rule to open the judg- 
 ment. In Bain v. Lyle an execution against Austin was levied 
 upon goods which were claimed by Corry. The latter gave an 
 interpleader bond to the sheriff, and the goods were thereupon 
 delivered to him. Subsequently they were sold on an execution 
 against Corry, and purchased by a stranger. The interpleader 
 issue being decided in favor of Austin, it was held he might follow 
 the goods in the hands of the purchaser at the last sale. This, of 
 course, was upon the theory that the original execution creditor 
 could not be deprived of his recourse to the goods, notwithstand- 
 ing they had been given up to the adverse claimant upon his sub- 
 stituting an interpleader bond in their place. In the present case 
 
316 HOW THE LIEN MAY BE LOST. 
 
 the bond given was a general indemnity bond only, and in no sense 
 a substitute for the goods. It was for indemnity against all dam- 
 ages which might be sustained by reason of the order staying pro- 
 ceedings. It contained no provision for a return of the goods. 
 It is plain then that if any of the goods originally levied upon still 
 remained in the possession of the defendant in the execution, or of 
 his assignee, for the benefit of creditors, who is merely his repre- 
 sentative [In re Fylton's Est., 51 Pa. St. (i P. F. S.) 204], it was 
 the right of the plaintiff to seize them by another writ, and sell 
 them in satisfaction of his claim. If they had passed to an as- 
 signee in bankruptcy, which does not appear in the testimony, they 
 would still be subject to the lien of the levy originally made. The 
 offer {161] of proof was somewhat indefinite, but in substance, it 
 was proposed to show the value of the goods which remained sub- 
 ject to the levy at the time of the final judgment, and that the 
 plaintiffs could have realized the greater part of their judgment 
 out of personal property which remained subject to the levy. This 
 offer was rejected on the ground that the lien of the execution was 
 discharged, and that the property had passed to an assignee for 
 the benefit of creditors, and afterward to an assignee in bank- 
 ruptcy. This was an insufficient objection, and the learned court 
 below was in error in rejecting the offer, and the judgment must 
 therefore be reversed. The evidence offered was material because 
 it might show that the sureties in the indemnity bond were released 
 in. whole or in part by the omission of the plaintiffs to seize and sell 
 the remaining goods. 
 
 Judgment reversed and venire de novo awarded. 
 
 This case must be distinguished from Field v. MacuUar, ante, p. 252, 
 In which the judgment was reversed on motion of the judgment debtor. 
 As there can be no execution without a judgment to be executed it is 
 clear that if the judgment is set aside the execution and all proceed- 
 ings thereon must fall. See Karr v. Schade, 75 Tenn. (7 Lea) 294; 
 Spaulding v. Lyon, 2 Abb. New Cas. (N. Y.) 203; May v. Cooper, 24 
 fiun (N. Y.), 7. Thus it was held that an execution on a judgment 
 against three was vacated by reversing the judgment as to one of the 
 defendants. Phillips v. Wheeler, 67 N. Y. 104. But in the present case 
 the judgment remained so far as the judginent defendant was con- 
 cerned. All that was done was to allow a claimant of the goods to 
 show a defense. 
 
 While Reid v. Llndsey and Rocco v. Parczyk, above, might per- 
 
BY CLAIMANT GIVING BOND. 317 
 
 haps be reconciled with each other, the decisions cited in them could 
 not. At common law a writ of error operated as a supersedeas from 
 the time of its allowance without any special order to that effect, and 
 it is only where similar operation is given to the statutory appeal or 
 writ of error under the statute that such decisions as Rocco v. Parczyk 
 are found, unless a supersedeas was expressly granted by the court; 
 from which the real conflict between this case and Reid v. Lindsey 
 clearly appears. It is quite as reasonable to hold that the bond given 
 to obtain the supersedeas should take the place of the property as that 
 the bond for the appeal, which operates as a supersedeas, should do so. 
 Accordingly we find several decisions to the effect that a stay of pror 
 ceedings under execution or attachment divests the Uien of the writ.| 
 McCamy v. Lawson, 40 Tenn. (3 Head) 256; Burks v. Bass, 7 Ky. (4 
 Bibb) 338; Bldridge v. Chambers, 47 Ky. (8 B. Mon.) 411. Contra be- 
 sides Reid V. Lindsey and cases cited, see Bond v. Willett, 31 N. Y. 102, 
 Freeman v. Dawson, 110 XJ. S. 264. 
 
 Likewise that the bond given to obtain an injunction takes the 
 place of the property held on the execution enjoined and the lien is 
 discharged. Keith v. Wilson, 3 Mete. (Ky.) 201; Barnes v. Baker, 
 Minor (Ala.) 373; Lookridge v. Biggerstaff, 2 Duv. (Ky.) 281, 87 Am. 
 Dec. 498; Bisbee v. Hall, 3 Ohio, 449. 
 
 But on the other hand it is held that the lien is not divested by the 
 injunction, (Knox v. Randall, 24 Minn. 479; Lamorere v. Cox, 32 La. 
 Ann. 246; Duckett v. Dairymple, 1 Rich. L. (S. C.) 143), and the senior 
 creditor is entitled to the proceeds of a sale under a junior writ, while 
 the injunction was in force, (Lynn v. Gridley, Walk. (Miss.) 548, 12 
 Am. Dec. 591, contra Mitchell v. Anderson, 1 Hill L. (S. Car.) 69, 26 
 Am. Dec. 158), provided, of course, a levy had been made under his writ 
 before the injunction issued. Launtz v. Gross, 16 111. App. 329; Lynn 
 v. Gridley, above. 
 
 Thus the conflict is seen to run all along the line, and no reason is 
 perceived why the effect of a stay, injunction, appeal operating as a 
 supersedeas, or a delivery on bond should not each have as much effect 
 on the lien of the execution or attachment as any other of them. Nor 
 do I remember any attempt in any of the cases above cited to distin- 
 guish them, but, on the contrary, as in Rocco v. Parczyk, the courts 
 frequently argue that one follows from the others. However, this dis- 
 tinction may be seen: In Kentucky the court holds that any of these. 
 In behalf of the judgment debtor, divests the lien, but replevin of the 
 property from the sheriff by a claimant does not, and after judgment 
 against the claimant in the replevin suit the property may, if found, 
 be sold on the original execution. Ferguson v. Williams, 3 B. Mon. 302. 
 See also Street v. Duncan, Ala. 23 South, 523; Hagan v. Lucas, 35 U. 
 S. (10 Peters) 400. 
 
XIV. SATISFACTION OF THE JUDGMENT. 
 
 1. By Issuance of Execution and Levy Undee It, 318. 
 
 2. By Recoveky of Judgments Against Garnishees, 330. » 
 
 3. By Waivee of Priority of Lien Under the Process oe Judgment, 331. 
 
 4. By Eetuen of Execution Satisfied oe Entey of Satisfaction on the 
 
 Record, 336. 
 
 5. By Payment, 336. 
 
 1: BY ISSUANCE OF EXECUTION AND LEVY UNDER IT. 
 
 GREEN V. BURKE. 
 23 Wend. (New York) 490. (1840) 
 
 Execution — What constitutes a Levy, the General Test — Necessity of 
 Taking and Retaining Exclusive Actual Possession — Importance 
 of Proclamation, View, Handling, Inventory, and Indorsement — 
 Validity of Levy by Infant Officer — Effect of Levy and Re- 
 lease, Escape, Recaption, Compromise, Loss or De- 
 struction of Property — Validity of Sale on New 
 Writ — Sale at a Sacrifice — Rights of Creditor 
 as to Other Property and Writs 
 While Levy Stands. 
 
 Replevin by Green against Burke for nine acres of wheat pur- 
 chased by Green on execution in favor of himself and another 
 against Burke. From judgment on verdict for defendant plaintiff 
 appeals. Reversed. 
 
 Defendant claimed that plaintiff acquired no title by virtue 
 of the purchase at the sale by constable Rood, because the judg- 
 ment was satisfied by reason of a levy on three colts under a pre- 
 vious execution thereon, which had been returned and the levy 
 abandoned by the constable Stevenson because he was under age. 
 
 W. Porter, jr., for plaintiff. 
 
 F. G. Jeivett, for defendant. 
 
 The Court by Cowen, J. '•■ * * There is no dispute that the 
 title to the wheat had been acquired by the plaintiff, in virtue of 
 his purchase under the execution held by Rood, unless the pre- 
 vious levy on, and abandonment of the colts by Stevenson, worked 
 a satisfaction of the judgment. The latter held a regular execu- 
 tion; and made a levy which was sufficient in point of form^ on 
 
BY LEVYING UNDER EXECUTION. 319 
 
 property of adequate value. It is supposed by the plaintiff's 
 counsel that there was no levy, because no act was done which 
 would, but for the protection of the execution, have been such a 
 taking of the colts as to amount to a trespass. This was spoken 
 of as the criterion of a levy, in Beekman v. Lansing, 3 Wend. 446, 
 450; and it was there said the court were inclined to consider it 
 an essential criterion. We are not disposed to deny that it is so. 
 The court there also said that the officer must take actual posses- 
 sion where it is in his power ; but he need not remove the goods. 
 They may be left with the defendant ; nor did the court insist that 
 an inventory was necessary. The case cited was well considered ; 
 and on the question of what acts of the officer alone shall consti- 
 tute a levy, highly authoritative. * * * The acts of the sheriff 
 were all summed up in his going to the house of the judgment 
 [49 3\ debtt>r with the execution in his pocket, but omitting even 
 to apprise him that he had come to make a levy. The court says 
 that he should have done some definite act in respect to the goods ; 
 something which could be known to the debtor and communicated 
 to his landlords. That the latter, at least, were not to be affected 
 by a mere mental levy. Id. 451. This question is well consid- 
 ered by Taylor, C.J., in Doe, ex. dem. Burden, v. M'Kinnie; 4 
 Hawks (N. Car.), 279, 280. In short, as between the sheriff and 
 third persons, he shall not be allowed to proceed in so secret a 
 manner, as to cut off all probable means of their knowing how to 
 deal with the debtor in respect to his goods, whether as purchasers 
 from him, or as his landlords claiming rent, or as subsequently 
 levying creditors. Vid. Bliss v. Ball, 9 Johns. (N. Y.) 132. 
 Haggerty v. Wilber, 16 Id. 287. As it respects the defendant 
 himself, too, the proceeding should be such as to apprise him of 
 the step ; and if he be not informed of it, at least a reasonable time 
 before the sale, yet the sheriff's acts should be such as not to leave 
 the inference of intentional concealment. The defendant should 
 have a fair opportunity to make the proper arrangements for pre- 
 venting a sacrifice of his property. The proceedings of the offi- 
 cer being such as are naturally calculated to avoid injurious con- 
 sequences, the form in which he chooses to make the levy is totally 
 immaterial. Holding the process, having the goods in his power, 
 
320 SATISFACTION OF THE JUDGMENT. 
 
 and directly declaring his intent, or doing what is equivalent, as 
 taking an inventory, or making a memorandum of the levy, satisfy 
 that branch of the rule which directs a change of possession. 
 Speaking is always an important part of the res gestae which con- 
 stitute such a change. In Wood v. Vanarsdale, 3 Rawle (Pa.), 
 401, the sheriff merely entered a store of goods, and declared his 
 intention to levy; and although the defendant expressed his dis- 
 satisfaction, and did no act to waive formality, the seizure was 
 held to be complete, notwithstanding the officer returned nulla 
 bona. He had put no one in possession, taken no inventory, and 
 never, after declaring the levy, interfered with the goods in the 
 least. The court held distinctly, citing the New York cases, that 
 none of these acts were necessary; and the sheriff [494^ having 
 returned the execution and abandoned the levy, by consent of the 
 plaintiff's assignee, the judgment was declared to have been satis- 
 fied. In Trovillo v. Tilford, 6 Watts (Pa.), 468, the sheriff did 
 not see the goods at all, nor did he go near them ; but the defend- 
 ant gave him a schedule, by arrangement, which he agreed should 
 be considereti a levy ; and that was held sufficient, even against a 
 third person, claiming as the defendant's vendee. Gilkey v. 
 Dicker son, 3 Hawks (N. Car.), 293, is not incompatible with Tro- 
 villo V. Tilford, nor with the common notion of what acts consti- 
 tute a levy. There the coroner merely called on the defendant and 
 asked him for a list of goods which he might sell to satisfy 
 the execution ; and the defendant gave him a list of negroes, suffi- 
 cient in value ; but the coroner never saw them, and the defendant 
 afterwards took them out of the county and sold them. The cor- 
 oner therefore levied again on two other negroes, which the de- 
 fendant afterward sold to Gilkey, who insisted on his right as ven- 
 dee, because the judgment had been satisfied by what he called the 
 first levy. Held that it had not ; and Taylor, C. J., gave the reason. 
 He said: "Had the property been present when the list was de- 
 livered, and the coroner had signified that he held it bound to an- 
 swer the execution, and there was no opposition to his possessing 
 himself of it, had he so desired, it would have amounted to a levy." 
 It will be perceived that no evidence was given whether the ne- 
 groes were anywhere within miles of the coroner; and he did 
 
BY LEVYING UNDER EXECUTION. 321 
 
 nothing and said nothing indicating that he considered the list a 
 levy. Beside, according to our cases, the eloignment and sale of 
 the negroes by the defendant would have warranted the second 
 levy irrespective of the question whether the first had been regu- 
 lar or not. 
 
 An actual taking of possession, therefore, does not necessarily 
 imply an actual touching of the goods ; but merely such a course 
 of action as, in effect, is calculated to reduce them to the dominion 
 of the law. They are then considered as in the custody of the 
 law ; and a degree of constructive force is imputed which at once 
 entitles the party whose goods are thus seized to his action of tres- 
 pass, if the officer [495] be destitute of authority. Whether the 
 rule requiring that to be done which may amount to a trespass, is 
 thus satisfied, we have examined more at large in the case of Con- 
 nah V. Hale, 23 Wend. 462. I have said more upon the point now, 
 because Bailey v. Adams, 14 Wend. 201, has been pressed upon 
 us as implying that the property must in some way be manually in- 
 terfered with. There the constable went with his execution to 
 the man who had possession of the property, a wagon, claimed to 
 levy on it as belonging to the defendant in the execution, making 
 a note of the levy, and leaving the wagon, with directions that the 
 man should take care of it. Ten or twelve days after, becoming 
 satisfied that the execution debtor had no title, he offered to re- 
 linquish his claim to the plaintiff, who was the real owner; but 
 the latter refused to accept the wagon, and brought trover against 
 the creditor who had directed the levy. The acts of the constable 
 were held not to have been a conversion ; the court remarking that 
 the actual possession of the property was not changed, and the 
 plaintiff had been put to no charge concerning it. The learned 
 judge who delivered the opinion of the court, referred in a general 
 way to Reynolds v. Shuler, 5 Cowen, 323, and Bristol v. Burt, 7- 
 Johns. R. 254. The question was considered in those cases ; but, 
 with deference, I understand them both to hold that such acts as 
 were proved in Bailey v. Adams, would clearly amount to a con- 
 version; and that even an actual acceptance of the goods by the 
 owner, much less a mere offer to deliver them, could no farther- 
 
 qualify the wrong, than by reducing the damages. Wintringham^ 
 21 
 
322 SATISFACTION 'OF THE JUDGMENT. 
 
 V. Lafoy, 7 Cowen, 735, was not cited. That case held the officer 
 liable in trespass de bonis asportatis, though he merely claimed to 
 have levied, taking an inventory and receipt. The decision was 
 also incompatible with the rule laid down in Allen v. Crary, 10 
 Wend. 349; Fonda v. Van Home, 15 Id. 631, 633, and many other 
 cases. The injury being complete, it is clear that a tender of the 
 property will not affect the plaintiff's rights. Clark v. Hallock, 
 16 Wend. 607; Hanmer v. Wilsey, 17 Id. 91. It is said in the lat- 
 ter case, and so are all the authorities, that even an acceptance by 
 the plaintiff, \_496'\ goes to the question of damages only. There 
 is no such thing as waiving a cause of action after it has once 
 arisen. And in the case at bar, there is no question that either 
 trespass or trover would have lain by Burke against Stevenson, 
 the minor, notwithstanding his abandonment of the levy, unless 
 he was protected by the process. * * * In short, there was no 
 such thing as Stevenson purging his own wrong by merely omit- 
 ting to follow up the trespass he had committed. He went to the 
 field with the defendant, for the purpose of levying on the colts ; 
 and made a note of the levy on the back of the execution. He not 
 only had the goods in view, and the intention to levy, but the de- 
 fendant, the execution debtor, had notice, and co-operated in, and 
 .submitted to the act. 
 
 Prima facie, then, the debt was, or might have been, accord- 
 ing to the event, satisfied by the levy. And many cases are cited 
 by the defendant's counsel to show that, although the constable 
 gave it up, and returned the execution to the justice, utterly refus- 
 ing to proceed, yet the plaintiffs were' concluded and could not sue 
 out a new execution. The ground taken is, that the judgment 
 was unqualifiedly satisfied by the levy. Admitting that the con- 
 stable had the power to levy, then, so long as he kept the act good, 
 and followed it up, something near the consequence contended 
 [497] for undoubtedly followed ; but he withdrew, without the 
 ■consent or knowledge of the plaintiffs, and I am not prepared to 
 ladmit that, in such a case, the creditor is bound to look to the offi- 
 cer alone for his remedy. I know that learned judges use lan- 
 guage in the cases cited, which is very strong. They say a levy 
 is a satisfaction of the debt; but every book they cite, and: every 
 
BY LEVYING UNDER EXECUTION. 323 
 
 case they decide, shows under what quaHfications they speak. 
 They all go back to Mountney v. Andrews, Cro. Eliz. 237. There 
 the plaintiff brought a scire facias qiiare executionem non, ^.nd 
 the plea was, not simply that the sheriff had levied, but that ,he 
 had taken divers sheep of the defendant for the debt, and yet de- 
 taineth them. The reason given was, that "the plaintiff has his 
 remedy against the sheriff, and the execution is lawful which the 
 defendant cannot resist." The value of the sheep was not men- 
 tioned; and surely it cannot be pretended that such a 'step shall be 
 taken as a satisfaction per se. Suppose the sheep had been solcl, 
 bringing only half the judgment; was the remedy by action, scir^e 
 facias, or execution gone for the residue ? I need not cite authori- 
 ties to show that such a consequence would not follow. It would 
 be absurd, and contrary to all practice. The doctrine laid down 
 in Clerk v. Withers, 1 Salk. 322, the case commonly relied on, is, 
 that "the defendant's goods being taken, no farther remedy could 
 be had against the defendant, but against the sheriff only." The 
 reason given is : "He Aiay be compelled to return his writ; if it be 
 a false return, an action lies ; if he returns a seizure and sale, he 
 has the money; if he has seized and not sold, that does not dis- 
 charge, but excuse the sheriff, and therefore, the plaintiff may 
 have a venditioni exponas,'' &c. The doctrine thus laid down was 
 not material, at least not essential to the decision ; and on referring 
 to the same case (2 Ld. Raym. 1072), a contemporary report, the 
 whole will be found to lie in a dictum of Gould, J., founded on a 
 curtailed statement of Mountney v. Andrews. In this he does not 
 present the plea there as one of detainer, but of levy only. It is 
 impossible to say that a verdict for the defendant would have 
 operated as more than a temporary bar of execution. The [498^ 
 seizure works no change of interest beyond vesting a special prop- 
 erty in the officer. The general property still remains in the 
 debtor. Wilbraham v. Snow, 2 Keble, 588, i Siderfin, 438, S. C. 
 and vid.'Ayer v. Aden, Yelvertori, 44. The goods are but a col- 
 lateral security ; and the seizure is, per se, neither a payment nor 
 satisfaction absolute, but only sub modo. Yet from Clerk v. 
 Withers, comes a pi'ogeny of dicta couched in the same general 
 language. Parsons, Ch. J., in Ladd v. Blunt, 4 Mass. 402, puts 
 
324 SATISFACTION OF THE JUDGMENT. 
 
 it that when sufficient goods are seized the debtor is discharged, 
 even if the sheriff waste the goods, &c. ; for, by lawful seizure the 
 debtor has lost his property in the goods." None of this was nec- 
 essary, for he was merely examining whether a levy on land 
 woul'd satisfy the debt, and held it would not, and in such case, he 
 concludes it is no satisfaction^ because till the land is delivered 
 to the plaintiff", the title of the defendant is not divested, and the 
 judgment is unsatisfied. We have held the same thing. She par d 
 V. Rowe, 14 Wend. 260, 262. And yet we have often taken it for 
 granted that the sheriff may, nay must levy on land as well as 
 goods; Jackson ex Dem. Sternberg v. Shaffer, 11 Johns. 513, 517; 
 Jackson ex dem. Carman v. Rosevelt, 13 Johns. 97, 102; and we 
 have, in several cases, allowed him fees for such levy, which im^ 
 plies that we consider it an incipient execution of the process, the 
 same as a levy on goods. Parsons v. Bowdoin, 17 Wend. 14, 15, 
 and the cases there cited. Are these cases all, wrong? If not, a 
 levy on land is more than a levy on goods, for the lien of the judg- 
 ment conspires with that of the execution. In neither case is the 
 debtor's property absolutely divested till a sale; but in both it is 
 partially displaced, though the sheriff acquire no interest in the 
 land. Take it that the sheriff holds a mere naked power in respect 
 to the land, like a tax collector; Catlin v. Jackson, 8 Johns. 520, 
 546 ; take it that the power or levy dies with him, or expires when 
 he goes out of office, or is gone with the return day of the fi. fa. 
 according to the cases in North Carolina ; Doe, ex dem. Barden v. 
 M'Kinnie, 4 Hawks (N. Car.), 279; Frost v. Etheridge, 1 Dev. 
 (N. Car.), 30; Den, ex dem. Tayloe v. Fen, i Dev. 295; Tar kin- 
 ton V. Alexander, 2 Dev. & Batt. 87, and the cases cited by Gas- 
 ton, J.; yet you have a lien by virtue of the judgment, surer in its 
 effect than can arise from a mere levy on j)ersonal property; and 
 the distinction between the effect of discharging the lien in one 
 or the other case, is merely technical. The goods levied on are a 
 pledge for the debt, like a distress for rent in the hands of the 
 landlord. That too works a suspension of all other remedy ; and 
 may mature into a satisfaction. Vid. Wallis v. Savill, 2 E. Lutw. 
 (Eng.) folio p. 1532, Eng. Ed. 649; Hutchins v. Chambers, i 
 Burr. 589; Bradby on Distresses, 130. A voluntary relinquish- 
 
BY LEVYING UNDER EXECUTION. 325 
 
 ment of a sufficient distress would probably bar all further rem- 
 edy by the act of the landlord, if not an action for the rent. And 
 yet in almost every other point of view, the goods are regarded as 
 no more than a collateral security. 
 
 Our cases appear to have drawn various consequences from 
 Clerk V. Withers; but I apprehend none of them admit the levy 
 to operate as an absolute satisfaction. Reed v. Pruyn, 7 Johns. 
 R. 426, was where the sheriff had paid the money. The court 
 there cite Ward v. Hauchet, 1 Keble, 551, to show that the sheriff 
 taking security for the debt, would discharge it: but in that case 
 the plaintiff consented to the sheriff taking a bond. Nothing is 
 said of a levy, and the rule there, as stated by counsel and agreed 
 to by the court, is clearly not law. Merely taking security by bond 
 will not discharge a judgment, though I admit that security taken 
 in due course of execution, even without the plaintiff's assent, 
 will have the same effect as a levy — for instance, if it be taken by 
 way of a receiptor or by bond in place of the goods seized. Bank 
 of Orange County v. Wakeman, 1 Cowen, 46, and note. In Hoyt 
 V. Hudson, \2 Johns. 207, the action was against the constable, 
 who had seized the goods and taken a receiptor. It was held that 
 he could not levy again. That was like a sheriff suffering a vol- 
 untary escape. He cannot make recaption of his own head. In 
 Ex parte Lawrence, 4 Cowen, 417, the levy on personal property 
 still pending was held to take away the lien of the judgment on 
 the debtor's real estate, and so the creditor could not redeem. The 
 court say the^evy extinguished the judgment, citing the previous 
 cases. In Jackson, ex dem. \50o\ Merritt v. Bowen, 7 Cowen, 
 13, the same point was decided; the fi. fa. having been returned 
 by direction of the creditor, and the levy thus discharged. Cor- 
 nell V. Cook, id. 310, 315, is a mere recognition of the general doc- 
 trine by Savage, Ch. J. In the case of Wood v. Torrey, 6 Wend. 
 562, the assignee of the judgment himself stood receiptor to the 
 sheriff ; yet he was allowed to make a second levy as against the 
 defendant, because the latter had caused the eloignment of the 
 goods. * * * An actual payment to the sheriff would probably 
 be deemed a payment of the debt. The judge seems to concede 
 this in Ontario Bank v. Hallett, 8 Cowen, 192. That a payment 
 
326 SATISFACTION OF THE JUDGMENT. 
 
 to the sheriff is a good discharge of the immediate defendant was 
 agreed both in Dyke v. Mercer, 2 Shower (Eng.) 394, and Clerk 
 V. Withers. [So held in Matter of Dawson, no N. Y. 114, 17 N. 
 E. 668.] 
 
 Thus, after all that has been said, we are to this day destitute 
 of any direct adjudication that levy alone absolutely extinguishes 
 or satisfies a judgment, as payment of the money would do. The 
 levy on a single sheep, according to the dicta in Salkeld and Ray- 
 mond, would satisfy a thousand pounds ; and so perhaps of several 
 detached dicta since that time. The gross absurdity of such a 
 rule has led the judges, in all the later cases, to speak in more 
 qualified terms; such as that the 'goods must be of sufficient value 
 to satisfy the debt; and again, if the debtor eloign them, the levy 
 is not a satisfaction. Nor do I believe any judge would, at the 
 present day, hold the plea in Croke to be more than a temporary 
 [SOi]^ bar of further execution; a mere ground for setting it aside 
 on motion. Would the judgment for the defendant on that plea 
 have barred an action of debt? Might not the plaintiff have re- 
 plied that the sheep sold for less than the judgment; and so re- 
 cover the balance ? To an action of debt, the plea could have been 
 nothing more in effect than a plea in abatement. 
 
 What then, after all, does the rule amount to ? Merely this : 
 that the levy is a satisfaction suh modo. It may operate as a sat- 
 isfaction, and must be fairly tried ; but if it fail, in whole or in 
 part, without any fault of the plaintiff, he may go to his farther 
 execution. He must fairly exhaust the first; and while that is 
 going on, he can neither sue on the judgment, nor have another 
 A. fa., nor a ca. sa., nor can )ie redeem lands sold on another judg- 
 ment. The plaintiff may, by tampering with the levy himself, 
 lose his debt — as if he release property from arrest, which is suffi- 
 cient to pay the debt. Even a distress which answers only part 
 of the rent may generally be followed up by distraining again; 
 and might, I apprehend, by the common law. Vid. Bradby, and 
 cases before cited in connection with him. In the still higher 
 remedy by capias ad satisfaciendum, if the sheriff allowed the 
 debtor to escape without the previous consent of the plaintiff, the 
 fatter might always, even before the declaratory statute of 8 and 9 
 
BY LEVYING UNDER EXECUTION. 327 
 
 Wm. 3, sue out a second ca. sa., though the sheriff could not re- 
 take on the first. Buxton v. Home, i Show. 174; Scott v. Pea- 
 cock, I Salk. 271. And, on an escape against the will of the sher- 
 iff, either he or the plaintiff might retake. Alanson v. Butler, 
 Siderfin (Eng.) 330. Thus it will be seen the law has never 
 adopted a harsh and blind rule, which will not yield to diversities 
 and exigencies as they arise. Indeed there are so many ways in- 
 vented by which goods may be got from the sheriff, sometimes by 
 fraudulent claims, sometimes by prior liens, and even by his own 
 negligence, that it behooves the courts to look into the rule now 
 urged upon us as working by a sort of magic to cut a man off from 
 his debt without the show or pretence of satisfaction. It is severe i 
 enough on plaintiffs who are without fault, to require that they 
 should get their executions [502'\ returned, without their debts ' 
 being held satisfied, because in the mean time the sheriff may "have 
 relinquished goods levied on. Doing so the debtor has them to 
 himself. In the case at bar, Burke had his colts again. Some- 
 times goods are so covered up by previous liens that it does no 
 good to sell them, for none will buy. And shall the party, in such 
 case, be driven to an attempt which must be idle? Why may he 
 not have his execution returned and resort t6 his creditor's bill? 
 Indeed we have been obliged to hold that he may. Evans v. 
 Parfier, 20 Wend. 622. Who will say that if the plaintiff happen 
 to commit a mistake, and relinquish a levy upon a modicum, he 
 must therefore lose his debt ? ° If he have fairly and in good faith 
 closed his proceeding on execution, why not give him his ulterior 
 remedy ? • 
 
 But was not the levy in question void by, reason of Steven- 
 son's non-age? It appears that the town had elected him to the' 
 office of constable ; and the justice had placed the execution in his 
 hands. The plaintiffs then directed him to go on and collect as 
 soon as might be. He levied ; but becoming satisfied that he had 
 already committed a trespass, he was too prudent to go any far- 
 ther; he returned the process to the justice, and gave up the colts 
 to the defendant. The latter offered to pay him the money, but 
 he would not take it. Now it is said he was an officer de facto; 
 'and that his acts bound the defendant and the plaintiff. He may 
 
328 SATISFACTION OF THE JUDGMENT. 
 
 indeed have been an officer de facto, {People, ex rel. Dobbs v.. 
 Dean, 3 Wend. 438) ; and had he gone on and collected the money, 
 the defendant never disturbing him, nor the creditors in their pos- 
 session of it, the thing would have been well enough. But his 
 acts were valid only in respect to such third persons as were af- 
 fected by them. Viner's Abr. tit. Officer, G. 3, Id. G. 4, vol. 
 16, p. 113, Lond. ed. 8vo. 1793. I know the cases have gone a 
 great way. But they have stopped with preventing mischief to 
 such as confide in officers who are acting without right. People, 
 ex rel. Bush, v. Collins, 7 Johns. R. 549. The officer himself can- 
 not be protected, except in some such case as Wood v. Peake, 8 
 Johns. 69. There he was appointed by the judicial act of magis- 
 trates having jurisdiction [50^'] in cases of vacancies happening; 
 and it was held that the officer's power could not be impeached 
 collaterally by showing that a vacancy had not happened. * * * 
 
 {504] 
 
 The result is plain. Stevenson was a trespasser. And, after 
 the plaintiffs in the execution had been informed that he was an 
 infant, they, by urging him on, would have brought themselves 
 to participate in his peril. Then, taking the rule of satisfaction 
 by levy in all its general strictness, as contended for by the defend- 
 ant's counsel, what were the constable and plaintiffs to do ? Most 
 obviously, they stood within an exception to the rule. Had the 
 money been collected by a sale of the colts, Burke might have re- 
 covered their value in trespass or trover ; and in this might, most 
 probably, have joined the plaintiffs, if he could show notice to 
 them of their eonstable's disability. Such a circuity would clearly 
 have nullified the credit, and brought down a new execution on 
 the defendant. The upshot is, that this young man prudently 
 chose to do beforehand what the law would have forced him to 
 do in another form ; and, however stringent the rule of satisfaction 
 by levy, this case made a plain exception. Suppose the sheriff to 
 make an irregular arrest even on a ca. sa.; is the plaintiff to be cut 
 off from his debt because the officer lets the man go? Goods of 
 a third person are levied on and discharged ; no one would pretend 
 that this discharges the debt. There can be no doubt that in such 
 
BY LEVYING UNDER EXECUTION. 329 
 
 and the like cases the creditor may relinquish the arrest, or levy, 
 without prejudice. 
 
 It follows that the second execution in the case at bar was 
 regular. The sale of the wheat on the ground, under that exe- 
 cution, was not impeached. Evidence was given of a dispropor- 
 tion in value between the wheat as it turned out and the sum due 
 on the execution. Admit this, and that the plaintiffs directed the 
 constable to sell it in preference to other property; Burke should 
 ihave paid the debt. The sacrifice, if it be one, seems to have been 
 of his own seeking. He sought to avail himself of a supposed 
 technical advantage, derivable from the levy on the colts. 
 
 The verdict should, therefore, be set aside ; at least so modi- 
 fied as to find the property of the wheat in the plaintiffs. * * * 
 
 New trial granted. 
 Judge Cowen's masterly argument In this case has been cited with 
 approval by almost every court in America. If it did not establish a 
 new rule, it caused the old one laid down in Clerk v. Withers to be bet- 
 ter understood. The supreme court of Arkansas (Whiting v. Beebe, 
 12 Ark. 538), in speaking of this subject said: "The rule laid down in 
 Clerk V. Withers, was recognized by most of the American courts for 
 a long while. Thus in New York, Kent, C.J., in Denton v. Livingston, 
 as early as 1812 recognized and approved the decision in that case, 
 after which for 27 years, in a series of uniform decisions, it was ad- 
 hered to, until, in Green v. Burke, Cowan, J., for the first time in that 
 state, questioned the propriety of the rule in its unqualified sense, after 
 which Bronson, C.J., in People v. Hopson, 1 Denio, 574, distinctly an- 
 nounced a change in the rule, which has since been generally acqui- 
 esced in by most, indeed by all the courts of the United States, so far , 
 as we are advised." In that case, Bronson, C.J., said, "If the broad 
 ground has not yet been taken, it is time it should be asserted, that a 
 mere levy on sufficient personal property, without more, never amounts ■ 
 to a satisfaction of the judgment. So long as the property remains in 
 legal custody the remedies of the creditor will be suspended. He can- 
 not have a new execution against the person or property of the debtor, 
 nor maintain an a'ction on the judgment, nor use it for the purpose of 
 becoming a redeeming creditor." For further discussion of the ques- 
 tion see Farmers & Mechanics' Bank v. Kingsley, 2 Doug. (Mich.) 379; 
 Kershaw v. Merchants' Bank, 7 How. (Miss.) 386; Fry v. Manlove, 60 
 Tenn. (1 Baxter) 256; Reynolds v. Rogers, 5 Ohio, 174. 
 
 Abandonment of Levy. . It has been held that a sale under fl. fa. 
 was not void by reason of a levy under a prior fi. fa. in the same suit 
 •on other property, which was released with the creditor's consent, and 
 the writ returned without anything further being done with it. Wright 
 T. Young, 6 Ore. 87. But without proof of release of the first levy the 
 
330 SATISFACTION OF THE JUDGMENT. 
 
 purchaser under the second writ was, held to have no title, the right oC 
 the creditor to abandon the levy and have a second writ, on returning 
 the first, being assumed. Friyer v. McNaughton, 110 Mich. 22, 67 N. W. 
 078. 
 
 The right of the creditor to have a new writ upon return of the 
 first, on which a levy has been made and nothing further done, must be 
 conceded, provided the return shows, or it is otherwise proven, that 
 any of the following facts exist: 
 
 1. That the first writ or levy was void, as in Green v. Burke, or 
 2, that defendant had no leviable interest in the property, either be- 
 cause it was exempt from process or because it belonged to a stranger; 
 for neither the plaintiff nor the officer is bound to persist in a mistaken 
 course, but only have the burden to prove the fact (Dixon v. White 
 Sewing M. Co., 128 Pa. St. 397; Bliven v. Bleakley, 23 How. Prac. N. 
 Y. 124), or 3, that defendant had rescued the property, or the officer 
 had allowed it to escape or had abandoned it without plaintiff's con- 
 sent, no loss thereby accruing to defendant (cases cited in Green v. 
 Burke), or, 4, that the plaintiff had ordered the release at defendant's 
 request or with his consent, (Walker v. Commonwealth, 18 Gratt. (Va.) 
 13, 98 Am. Dec. 631), or, 5, that other creditors had obtained the prop- 
 erty or its proceeds, (compare Commonwealth v. Magee, ante, and note 
 to Reid V. Lindsey) ; or possibly 6, that the property had been destroyed 
 by overwhelming calamity (compare Brice v. Carr, post, but see cases 
 cited in above opinion) ; and probably in many other cases. 
 
 Yet the rule as generally stated is that if the creditor order a re- 
 lease without the consent of the debtor his claim is discharged, and 
 he has no further remedy. Certainly the creditor would not be per- 
 mitted to harass the debtor by seizing and releasing one thing after 
 another. Smith v. Hughes, 24 111. 270; Hunt v. Breading,. 12 S. & R. 
 (Pa.) 37, 14 Am. Dec. 665. 
 
 2. BY RECOVERY OF JUDGMENTS AGAINST GARNISHEES. 
 
 BRICE v. CARR. 
 13 Iowa 599. (1862) 
 
 Garnishment — Effect as Payment on Main Judgment — Who Bear Loss 
 from Insolvency of Garnishee — Duty of Judgment Debtor. 
 
 The Coiirt by Wright, J. Complainant seeks to restrain the 
 collection of a judgment. The gravamen of the bill is, that the 
 creditor garnished a {600] debtor of the defendant in execution, 
 and held him so long under and by virtue of that process, that he, 
 in the meantime, proved to be insolvent ; that complainant thereby 
 lost his debt, whereby he was in equity discharged from all liability 
 on said judgment. 
 
 We think the court was justified in concluding that there was 
 
BY WAIVER OF PRIORITY. 331 
 
 no such delay, on the part of plaintiff in the garnishee proceedings,, 
 as to entitle complainant to the relief asked. And if unnecessary 
 delay did occur, complainant could have prevented this by paying 
 his debt, as was his duty, and thus releasing the garnishee. This 
 proceeding did not absolve complainant from his duty to discharge 
 his debt. He had something to do. He could not remain passive. 
 
 AMrmed. 
 
 To same effect see Dickinson v. Clement, 87 Va. 41, 12 S. B. 105; 
 McBride v. Farmers' Bank, 28 Barb. (N. Y.) 476; ^tarr v. Moore, 3 Mc- 
 Lean, 354, Fed. Gas. No. 13,315; McBlwee v. Jeffreys, 7 S. Car. 228; 
 Wade V. Watt, 41 Miss. 248. 
 
 Without mentioning Brice v. Carr, or any of tlie cases above cited, 
 the supreme court of Iowa, in a recent case, entered satisfaction of the 
 principal judgment, on petition of the judgment debtor showing that 
 on garnishments judgments had been rendered- against the garnishees 
 equal in amount to the main judgment, saying that if the creditor could 
 not realize on the garnishment judgments he must prove it. Boweu 
 v. Port Huron B. & T. Co., . . Iowa 80 N. W. 345. 
 
 3. BY WAIVER OF PRIORITY OF LIEN UNDER THE PROCESS OR 
 JUDGMENT. 
 
 BANK OF PENNSYLVANIA v. WINGER. 
 
 1 Rawle (Pennsylvania) 29s, 18 Am. Dec. 6,33. (1829) 
 
 Satisfaction of Judgment by Levy, Sale and Application on Junior 
 
 Judgment — Rights of Sureties — Effect of Judgment 
 
 Againsf Sureties on Character of Their Liability. 
 
 Scire facias by Bank of Pennsylvania for use of J. Echelmen 
 and B. Vernor against Jacob Winger and P. Reidebaugh, to re- 
 vive a judgment in favor of the bank against said W. and R., 
 which had been assigned to said E. and V. From a judgment for 
 defendants plaintiff brings error. Reversed. 
 
 The judgment on which this scire facias is based was ren- 
 dered Nov. 27, 1820. Afterward, April 9, 1822, E. recovered a 
 judgment against R. on which fi. fa: was issued and satisfied by a 
 sale of R.'s land. Later, Aug. 29, 1823, the bank assigned its 
 judgment to E. and V., who caused this sc. fa. returnable at Nov. 
 Term, 1823, to be issued to revive it. Defendants claim that the 
 bank's judgment was satisfied by the sale of the land under ft. fa. 
 on the junior judgment of E. for more than enough to pay it. 
 
 Evans & Norris, for plaintiff. 
 
 W. Hopkins, for defendants. 
 
332 SATISFACTION OF THE JUDGMENT. 
 
 The Court by Gibson, C. J. It was long a moot point whether 
 the sale of land on execution would discharge a prior lien ; but I 
 believe no one ever suspected that it would discharge the debt. 
 Such a consequence could be produced only by treating the debt 
 and its lien as inseparable. The lien is, however, but a security 
 which may be released either before or after a sale, and, as any 
 other security, without affecting the existence of the debt. By a 
 sale, the purchase money is substituted for the land; and as it is 
 withdrawn from the control of the debtor, and put within that of 
 the lien creditors, I admit that they are bound to look to the appli- 
 cation, of it, insomuch that a loss of any part of it will have to be 
 borne by him whose act occasioned it: in other words, that the 
 debtor may, in equity and conscience, consider whatever has per- 
 ished in the hands of the sheriff, as actually paid to him who is 
 entitled to receive it. But can he do so in respect of what has 
 gone into his own pocket, or, what is the same thing, in ease of 
 his debts? It never has been supposed — certainly it never has 
 been decided — that he can. Where a creditor has two funds, we 
 have prevented him from frustrating the lien of another who had 
 but one ; yet that could not be done if the rights of the parties were 
 fixed by the sale ; for the prior judgment cfedifor would be paid by 
 operation of law, and before the court could interpose. Hunt v. 
 Breading 12 S. & R. (Pa.) 37, is cited to show that a levy to the 
 value of the debt, is per se, satisfaction of the execution on which 
 the levy was made. It would be more to the purpose to show that 
 it discharges other executions which bind the goods. If such 
 were the law, a multitude of cases would necessarily have arisen 
 under it; and the total absence of decision on the subject, is sat- 
 isfactory evidence that the principle does not exist. Surely a 
 right to priority of payment may be waived without waiving that 
 of which it is but an accident. A creditor may release the land 
 without releasing the debt; and why not the purchase money, 
 which is in the place of the land ? It seems to me he does no more 
 when he waives his preference in favor of those who claim under 
 the debtor by his title subsequent. It is a principle of common 
 sense, which has been embodied as a maxim, that any one may 
 waive a right created for his own benefit. What injury can it do 
 
BY WAIVER OF PRIORITY. 333 
 
 any one? [joj] Surely Reidebaugh, whose proper debt was 
 paid with his own money, could not object to the waiver of prefer- 
 ence by the bank: and let us see whether Winger, his co-debtor, 
 has any better right to do so. 
 
 Winger and Reidebaugh originally stood in the relation of 
 principal and surety ; so that the refusal of the bank to take satis- 
 faction out of the land of the surety, was in furtherance of the 
 equity between the debtors themselves; and to this Reidebaugh, 
 the surety, could not object. But, previous to this Winger had 
 put into his hands funds to discharge the whole debt, which Reide- 
 baugh misapplied ; and the original relation between them, there- 
 fore, was, in fact, reversed. But of this the bank was not ap- 
 prised, and it was therefore justifiable in acting in conformity to 
 the equity of the original relation. It waived its preference in 
 favor of a surety to pursue the principal — the very thing that a 
 court of equity would have compelled it to do. I will not stop to 
 enquire whether the relation of principal and surety is dissolved 
 by a judgment at law, although the negative of the question is 
 sustained by a solemn decision of this court, and there can be no 
 reason why the fixing of the parties at law should absolve the prin- 
 cipal from the moral obligation to protect his surety. For the 
 purposes of the argument I will admit that the relation is extin- 
 guished. The consequence is that both are principals, and stand 
 in equal equity as between themselves. How then could Winger 
 object to the waiver of its preference by the bank, if Reidebaugh 
 could not? A creditor may collect his debt from either of two 
 principal debtors, or from both, at his election. If then the sale 
 by the sheriff were not payment per se, the bank had nothing in its 
 hands but the means of actual payment, which it is not bound to 
 retain in favor of any one but a surety. This principle is well set- 
 tled both in Pennsylvania and England. Commonwealth v. Mil- 
 ler's Adm. 8 S. & R. (Pa.) 452, 457; Reed v. Garvin, 12 S. & R. 
 (Pa.) 100, 103. The bank then might well permit the proceeds J 
 of Reidebaugh's land to go to his use without injury to Winger, / 
 who was in no aspect entitled to be treated as a surety, and who' 
 had no other right to object than that of Reidebaugh himself. 
 
 Thus far I have considered the question as if it were betweep 
 
334 SATISFACTION OF THE JUDGMENT. 
 
 the defendants and the bank. The judgment is, however, owned, 
 in part, by Echelman, the plaintifif in the judgment on which 
 Reidebaugh's land was sold; and the question is whether he did 
 not stand in, at least, as favorable a situation as did the bank. 
 -* * * [J04] * * * So far was it from being unconscionable in 
 him to possess himself of the means and capacity of the bank, that 
 a court of equity would have given him the benefit of them. "If," 
 says Chancellor Kent, "a creditor has a lien on two parcels of 
 land, and another creditor has a lien, of a younger date, on one of 
 these parcels only, and the prior creditor elects to take his whole 
 demand out of the land on which the junior creditor has a lien, 
 the latter will be entitled either to have the prior creditors thrown 
 upon the other fund, or to have the prior lien assigned to him, and 
 to receive all the aid it can afiford. Cheesebrough v. Millard, i 
 Johns. Ch. 409, 412. * * * It seems to me that, independent of 
 all other considerations, this is decisive in his favor. I am there- 
 fore of opinion that the judgment be reversed. 
 
 Judgment reversed. 
 To the same effect see Barber v. Reynolds, 44 Cal. 519, where there 
 was a levy under both executions and the first judgment held satisfied 
 only as to creditors holding intermediate liens. Also Polsom v. Ches- 
 ley, 2 N. H. 432. 
 
 HAMILTON V. MOONEY. 
 84 North Carolina 12. (1881) 
 
 Distribution of Proceeds of Judicial Sale Among Creditors — Effect of 
 IVIisapplication on Liability of Surety to Party Denied His Share. 
 
 Motion by Sarah Hamilton, judgment creditor, for judgment 
 and execution against Adolphus Mooney as surety on the appeal 
 bond of Robt. Simpson et al., defendants, against whom judgment 
 was rendered on appeal. From an order granting the motion 
 Mooney appeals. Affirmed. 
 
 Judgment on the appeal was recovered by plaintiff for $220, 
 March 25, and execution issued May 3d, and levied with numer- 
 ous other executions on a stock of goods which the sheriff sold 
 for $1,496, and turned the proceeds into court. The court 
 awarded plaintiff $68 out of the fund. 
 
 W- J. Montgomery, for plaintiff. 
 
 Hoke & Hoke, ior defendant. 
 
, BY WAIVER OF PRIORITY. 335 
 
 The Court by Smith, C.J. *- * * The defendant denies his 
 liabiUty, alleging that the property levied on was amply sufficient 
 to satisfy the execution, and such was, in law, its effect ; and fur- 
 ther, that part only of 'the goods were sold, and the remainder de- 
 livered over wrongfully to the assignee in bankruptcy of the said 
 firm, by reason of which, he, the surety, became and is exonerated 
 from all liability upon said undertaking. * * * [7^] * * * 
 
 The only matter of law presented in the appeal is the suffi- 
 ciency of the exception to the ruling, that the goods levied on and 
 surrendered were not a satisfaction of the plaintiff's execution, 
 to the extent, that the proceeds of their sale would have been ap- 
 plicable to it. 
 
 While a levy of an execution upon the goods of the debtor 
 is a specific appropriation to, and discharge of, the debt, even 
 when wasted or lost, for the reason that he ought not to be com- 
 pelled, nor his other property taken, to pay the same debt a second 
 time, yet if the goods have been restored to him, or used in the 
 discharge of his other liabilities, their value does not go in satis- 
 faction of the execution. If this were not so, the same property 
 would discharge two independent debts, and the debtor would be 
 relieved from liabilities in double the amount in value of the prop- 
 erty taken. * * * 
 
 While the liability of the principal debtor remains unimpaired, 
 when the property is restored to him, or otherwise [15] used for 
 his benefit, the surety is discharged, whenever the creditor sur- 
 renders any lien he has acquired on the property, or other security 
 furnished by the debtor, since the property of the latter, being pri- 
 marily liable, must be applied in exoneration of the surety. Smith 
 V. McLeod, 3 Ired. Eq. 390; Forbes v. Smith, 5 Ired. Eq. 369; 
 Nelson v. Williams, 2 D. & B. Eq. 118. 
 
 But the rule does not apply when the creditor does not parti- 
 cipate in the misapplication of the fund, nor in any wise assent 
 thereto. Kesler v. Linker, 82 N. C. 456. 
 
 The right to proceed against the surety is not forfeited nor 
 postponed, because there is also a right of action against the officer 
 for his misconduct and breach of official duty. The defendant in 
 express terms contracts "that if judgment be rendered against the 
 
336 SATISFACTION OF THE JUDGMENT. 
 
 appellant and execution thereon be returned unsatisfied in whole 
 or in jjart, he will pay the amount unsatisfied," the precise con- 
 tingency that has occurred, and there is nothing in the facts set 
 up as a defence to release him from his obligation. * * * 
 
 AMrmed. 
 
 4. By Return of Execution Satisfied, or Entry of Satisfaction on tlie 
 
 Record. 
 See the cases given in the following chapter. 
 
 5. By Payment. 
 
 See Wills v. Chandler, ante, p. 81. 
 
XV. RIGHT OF THE CREDITOR AFTER SATISFAC- 
 TION OF RECORD WITHOUT ACTUAL RE- 
 CEIPT OF PAYMENT. 
 
 1. To Action on the Judgment ok on the Osiginal Demand, 337. 
 
 2. To Fukthbb Process oi' Coukse, 338. 
 
 3. To FUBTHEK PKOCBSS ON MOTION OE SCIBE FACIAS, 340. 
 
 1. TO ACTION ON THE JUDGMENT OR ON THE ORIGINAL 
 DEMAND. 
 
 PIPER V. ELWOOD. 
 4 Denio (New York) 165. (1847) 
 
 Action on Judgment — Effect of Satisfaction by Purchase of Property on 
 
 Execution Sale — Proof of Recovery, Effect — Court's Power 
 
 to Set Aside Satisfaction and Give New Writ. 
 
 Action in justice court by Elwood against Piper on a judg- 
 ment of a justice of the peace. From judgment of C. P. on cer- 
 tiorari affirming the judgment of the justice in favor of plaintifi 
 defendant brings error. Affirmed. 
 
 Defendant claimed the judgment sued on was satisfied, as it 
 appeared that an execution was issued thereon and levied on de- 
 fendant's horse, which was sold by the constable for enough to 
 satisfy the execution, and it was returned satisfied. But plaintiff 
 showed that defendant had sued him and recovered the value of .' 
 the horse because it was exempt from execution. 
 
 V. Owen, for Piper. 
 
 James Hyde, for Elwood. 
 
 The Court by Bronson, C.J. The defendant defeated the ef- 
 fect of the levy and sale, by suing for and recovering the value of 
 the property. The first judgment thereupon revived, and might 
 be enforced. If the judgment had been in a court of record, the 
 plaintiff would have been allowed to amend or strike out the return, 
 on the execution, and to have a new execution. Adams v. Smith,, 
 
338 creditor's rights after satisfaction. 
 
 5 Cowen, 280. As the justice had no power to order such an 
 
 amendment, an action on the judgment was the appropriate 
 
 remedy. 
 
 Judgment affirmed. 
 
 In Texas debt on judgment of a court of record satisfied by sale 
 of land on execution was sustained on proof that the levy and sale were 
 fatally defective. Townsend v. Smith, 20 Tex. 465, 70 Am. Dec. 400. 
 Debt on judgment after levy of execution under it held not' maintain- 
 able where defendant's title was perfect, but plaintiff failed to record 
 the levy. Lawrence v. Pond, 17 Mass. 433. 
 
 2. TO FURTHER PROCESS OF COURSE. 
 
 HUGHES v. STREETER. 
 24 Illinois 647, 76 Am. Dec. yyy. (i860) 
 
 Execution on Judgment Satisfied of Record — Power of Clerk to vacate 
 Satisfaction and Award New Writ — Levy on Land, Suffic- 
 iency of Indorsement to Identify, 
 t 
 
 Motion by John Hughes to quash an execution on a judg- 
 ment against him in favor of Samuel Streeter, on which a previous 
 execution had been returned : "Made * * * the amount of this 
 judgment interest and costs." From order denying the motion, 
 Hughes brings error. Reversed. 
 
 Scates, McAllister & Jewett, for plaintiff in error. 
 Smith & Dewey, for defendant in error. 
 The Court by Walker, J. The rule has been uniform both in 
 this country and Great Britain, that after a satisfaction of a judg- 
 ment by the sale of property, no further execution can issue upon 
 the judgment, until the satisfaction is vacated, the levy and sale set 
 aside, and an execution awarded by an order of the court in which 
 the judgment was rendered. No case has been referred to, and 
 none is believed to exist, in which a clerk has ever before issued an 
 execution on a judgment thus satisfied. And it is for the plain 
 rand manifest reason, that his duties are only ministerial, while the 
 netting aside a levy, or a sale, or the vacating the entry of satisfac- 
 tion of a judgment, is a judicial act. When the plaintiff 
 has sold property in satisfaction, his judgment ceases to exist, and 
 -when the record entry of its satisfaction is vacated, it is thereby 
 . trevived, and receives new vitality* ,..The exercise alone of a judi- 
 ■ cial power, equal to that which first made the decision, can impart 
 
TO FURTHER PROCESS OF COURSE. , 339 
 
 this new life to a judgment which has once been satisfied by an 
 officer or person clothed with power to make the entry. The hear- 
 ing the evidence and finding the facts on the motion, is as purely 
 judicial, as is the astertaining the amount of the indebtedness, and 
 rendering the judgment in the first place. The clerk might as 
 well assume the one jurisdiction as the other, and the exercise of 
 either is wholly unwarranted. 
 
 We have, however, been referred to the case of the Frankfort 
 Bank V. Markley, i Dana (Ky.) 373, as an authority to sustain the 
 practice. That was a case where an agent of plaintiff, through 
 mistake, entered a credit on the execution, and the clerk issued an 
 alias for the full amount of the judgment. That case stands, so far 
 as we can find, solitary and alone, and no rule of law is referred to 
 in support of the authority of the clerk, and the court, in the opin- 
 ion, very properly discourages the practice. The facts of that case 
 are not the same as in this, and even if they were, we should not be 
 inclined to follow it as a precedent, or as authority, since we believe 
 that it is opposed to the uniform practice, and is not sanctioned 
 by the common law, is unauthorized by statute and in violation of 
 our constitution, which has vested all judicial power in courts, and 
 [(550] not in ministerial officers. We are therefore clearly of the 
 opinion that the court erred in not quashing the alias execution, as 
 its issue was not warranted until the satisfaction, the levy and sale, 
 had been set aside by the judgment of a court of competent juris- 
 diction. 
 
 The question will necessarily arise on another trial, whether 
 the levy and sale made under the first execution should be set 
 aside. * * * A part of eighty acres, containing seventy-four 
 acres, more or less, is wholly iiisufficient to designate any tract of 
 land, that can be located. By this description it might be located 
 in a large number of different modes, either of which would 
 equally answer the call of the deed. It is true, that it is seventy- 
 four acres in a designated eighty-acre tract. But whether on the 
 one or another of the sides, in the center or in one of the angles of 
 the tract, it is impossible to know. There is nothing in the levy 
 and certificate of purchase froui which that fact can be ascertained, 
 and we have no other means, which we can recognize, of ascertain- 
 
340 creditor's eights after satisfaction. 
 
 ing the intention of the parties. Whether the half of the quarter 
 section is fractional, does not appear. But even if it did appear that 
 he owned seventy-four acres by an appropriate description, there 
 is nothing in the levy to limit and designate the portion of the half 
 of the quarter that he owned. Had it stated that it was all of the 
 land which he owned in the tract, or that it was all of the land he 
 has acquired by purchase from a particular individual, or some 
 such reference to something else, by which it could have been 
 located, it might have been sufficient. But we have no such refer- 
 ence, and we have no doubt that the description is so defective that 
 ho title whatever passed by the sale. This being the case, the 
 defendant in error did not obtain anything by his purchase, and 
 has an equitable right to have the levy and sale set aside, and an 
 execution awarded by which he may acquire the benefit of his 
 judgment. 
 
 The judgment of the court below is reversed, and the cause 
 remanded. 
 
 Judgment reversed. 
 
 On the first point, to the same effect, Tudor v. Taylor, 26 Vt. 444. 
 
 The decision in Richardson v. McDougall, 19 Wend. (N. Y.) 80, to 
 the effect that new execution on a satisfied judgment may issue with- 
 out any order of court, if the property sold proves not to belong to the 
 judgment debtor, is clearly induced by admission of counsel and with- 
 out reflection, for Cowen, J., says: "It is not denied that execution 
 might well have issued had it not been for the sci. fa." 
 
 Numerous decisions to the same effect as to the sufficiency of the 
 description are cited in Freeman., Ex. § 330. 
 
 3. TO FURTHER PROCESS ON MOTION OR SCIRE FACIAS. 
 
 WATSON V. REISSIG. 
 24 Illinois 282, 76 Am. Dec. 746. (i860) 
 
 Judgments — Power of Courts Over Their Processes — How Exercised 
 
 Power to Set Aside Satisfaction — Property Liable to 
 Process, Right of Redemption. 
 
 Motion by Charles Reissig to set aside and vacate an entry of 
 satisfaction of a judgment in his favor against Alonzo Watson. 
 F)-om an order granting the motion defendant brings error. Af- 
 firmed. 
 
 The satisfaction was entered on return of execution on the 
 
TO PROCESS ON MOTION. 341 
 
 judgment, stating that lots two and three of Wheaton's Addition 
 to the town of Wheaton had been levied thereon and sold to the 
 plaintiff in the judgment for the amount of the judgment and 
 costs. 
 
 Mather, Taft & King, for Watson. 
 
 Coventry & Rountree, for Reissig. 
 
 The Court by Caton, C. J. The law is too well settled to ad- 
 mit of discussion, that a court of law may exercise an equitable 
 jurisdiction over the execution of its own judgments and process, 
 but it does not follow that it will always exercise such jurisdiction, 
 and indeed it will refrain from doing so, when from any circum- 
 stance, it cannot do as complete justice as a court of equity, but will 
 leave the parties to seek relief in that court. We shall see whether 
 this record presented such a case as justified the court of law in 
 exercising such an equitable jurisdiction. * * * [28^] * * * The 
 facts may be stated in a very' few words. The property had been 
 previously sold on the Savage execution, and there only remained 
 in the judgment debtor a right of redemption. This was levied 
 upon and sold by virtue of this execution, and bid in by, or for, 
 the judgment creditor, and upon that bid and for that considera- 
 tion, satisfaction of the judgment and execution was entered. 
 And whether this sale and satisfaction should be set aside, was the 
 real question to be determined. 
 
 In the case of Merry v. Bostivick, 13 111. 398, it was decided 
 by this court, for reasons which we think entirely satisfactory, 
 that the right of redemption which is by our statute vested in the 
 judgment debtor for twelve months after a sale of real estate 
 under a decree ©r an execution, is not subject to- be levied upon 
 and sold, by virtue of another execution against the judgment 
 debtor. Hence this levy and sale conferred no right or title to 
 the purchaser. It was entirely void, and the satisfaction was en- 
 tered without any shadow of consideration whatever. In such 
 a case it was not only proper, but it was the duty of the court to 
 set aside, or vacate the entry of satisfaction, and to issue another 
 execution under which the judgment creditor might redeem from 
 any sale where the law would permit it, or otherwise seek a real 
 satisfaction of his judgment. 
 
342 creditor's rights after satisfaction. 
 
 The order of the court below is affirmed. 
 
 Order affirmed. 
 
 In other states it has been held that the debtor's right of redemp- 
 tion is an interest liable to levy and sale on an execution or attach- 
 ment against him. Curtis v. Millard & Co., 14 Iowa 128, 81 Am. Dec. 
 460; Herndon v. Pickard, 73 Tenn. (5 Lea) 703. 
 
 FREEMAN v. CALDWELL. 
 10 Watts (Pennsylvania) g. (1840) 
 
 Judgments — Setting Aside Satisfaction and Awarding New Writ — War- 
 ranty in Judicial Sales — Right to Re-Execution on 
 Failure of Title— Statute 32 Hen. VIII. 
 
 Scire facias by James D. Caldwell against Brewster Freeman, 
 to obtain execution on a judgment against said Freeman, which 
 had been satisfied by a sale to plaintiff on fi. fa, of cattle which 
 turned out not to belong to Freeman and were afterward replev- 
 ined by the owners. From an order granting new execution de- 
 fendant brings error. Reversed. 
 
 Armstrong and Campbell, 'for appellant. 
 
 Parsons and Greenongh, contra. 
 
 The Court by Gibson, C. J. In judicial sales there is no war- 
 ranty. The principle is universal, but particularly recognized by 
 us in judicial sales of land, which we treat as a chattel for payment 
 of debts ; and it is of course equally applicable to the judicial sale 
 of a chattel pure. What interest in it does the sheriff propose to 
 sell ? Not a title to it, but the debtor's property in it, whatever it 
 may be ; and the vendee, where the thing has been recovered from 
 him, has no recourse to the price of it in the hands of the sheriff or 
 the creditor's pocket. In the case of The Monte Allegre, 9 Wheat. 
 616, it was ruled that a loss sustained by the marshal's vendee of a 
 rotten article, sold by a sample with which it did not correspond, 
 should not be made good out of the proceeds in court. Why shall 
 not the same principle be applied to a purchase by the judgment 
 creditor himself? By his bid he may have prevented a sale to a 
 stranger who could have had recourse to no one; and thus have 
 deprived the debtor of the benefit of his doubtful title, which 
 may have been a legitimate subject of value. In the one case and 
 in the other, the produce of it has, in contemplation of law, been 
 
TO PROCESS ON MOTION. 343 
 
 brought into court and distributed; and the matter has conse- 
 quently passed in rem judicatam. * * * [12] 
 
 Before the 32 Hen. VIII, there was no re-extent upon an evic- 
 tion of a tenant by elegit. "Nota" says Lord Coke, and Inst. vol. 
 I p. 190, a, "it appears by the preamble of the said act, and by 
 divers books, that after a full and perfect execution had by elegit 
 returned and of record, there never shall be any re-extent on any 
 eviction, but if the extent be insufficient at law, there may go out a 
 new extent." Here then is distinctly announced the common law 
 principle which rules the case ; and though it has been abrogated in 
 England, so far as regards land, there is no statute on the subject 
 in Pennsylvania. The silence of the repealing act as to chattels, 
 was imputed by Mr. Justice Woodbury, in Whiting v. Bradley, 2 
 N. H. 79, to a supposition that creditors could, even then, have a 
 new execution of everything but land ; but it -is plain, from the 
 special provision of the statute in that case, that the legislature of 
 his own state thought otherwise. Indeed, the statute Westm. 2, 
 which gave the writ of elegit, had put land and chattels on a foot- 
 ing in all respects, except the relative quantity which might be 
 levied of each, and the manner of its application to purposes of sat- 
 isfaction ; and it is probable, the reason why the latter were not in- 
 cluded in the 32 Hen. VIII, was that the progress of trade had not 
 involved the title to things personal, so frequently in complication 
 and doubt, as to cause much inconvenience from it. * * * 
 
 Without power derived from a statute, therefore, I take it that 
 [ij] execution can not be repeated; and though this clear com- 
 mon law principle may be violated, it can not be evaded. It is 
 among the worst symptoms of the judicial epidemic of our day, 
 that the bent of the professional mind is towards oral testimony in 
 preference to record and written proofs. What motive could there 
 be, were it allowable on principle, to overturn the record in this 
 instance ? The plaintiff's case may be thought a hard one ; but it 
 is not more so than would be the case of a stranger, and to say that 
 every sheriff's vendee who is deprived of the property by title para- 
 mount, shall have his money again, would destroy all confidence 
 in the stability of judicial sales. He takes upon him a risk which 
 may lead to his disadvantage ; but he does so at the premium of a 
 
344 creditor's rights after satisfaction. 
 
 reduced price. Were it not for this risk, a plaintiff might safely 
 depreciate the defendant's title, and buy it in at a sacrifice. If it 
 proved good, he would have it at an undervalue; but if bad, he 
 would be only where he began. His interest, instead of being pro- 
 moted by a sale for an outside price,- would be to have the property 
 sacrificed ; and it is impolitic to encourage a principle which would 
 . make him a speculator. In this respect, an advantage over the 
 other creditors would be, not only unjust to them, but ruinous to 
 the debtor. On grounds of reason and authority, therefore, he 
 
 ought to stand as any other purchaser. 
 
 Judgment reversed. 
 
 This Is the case usually cited by those who maintain this view, and 
 it fairly represents their argument. To the same effect see Vattier v. 
 Lytle, 6 Ohio, 482; Thomas v. Glazener, 90 Ala. 537, 8 South, 153, 24 
 Am. St. Rep. 830; Halcombe v. Loudermilli, 3 Jones (N. C.) 491; and 
 Jones v. Burr, 5 Strobh. (S. Car.), 147, same case 53 Am. Dec. 699, in 
 a note to which Mr. Freeman reviews a large number of decisions. In 
 his work on executions he says : "Upon this question the authorities are 
 clearly irreconcilable." Freeman Ex. § 54. But from the following 
 cases the clear weight of authority, and as it seems to me of reason 
 also, will be seen to be against Freeman v. Caldwell. In many states 
 a remedy is given by statute. But let us review the decisions not de- 
 pending upon statute. In Connecticut payment being compelled under 
 a levy after the return day of the writ and satisfaction entered, the 
 judgment was revived on scire facias on proof that defendant had re- 
 covered the amount paid. Stoyel v. Cady, 4 Day (Conn.) 222. In a 
 later case debt on judgment was sustained though the judgment had 
 been satisfied by levy on land of a stranger, the creditor who purchased 
 at the sale supposing defendant's conveyance to be fraudulent. "In 
 this state the ancient English common law rule has never been 
 adopted; but the practice has uniformly been in conformity with the 
 principle that where there is no real, but only an apparent satisfaction 
 of the execution issued on a judgment, by reason of a mistaken or fruit- 
 less levy on lands, debt on judgment, as well as scire facias may be 
 brought to obtain satisfaction." Cowles v. Bacon, 21 Conn. 451, 56 Am. 
 Dee. 371. 
 
 In the following cases satisfaction produced by a sale of property 
 which proved not to belong to the judgment debtor was set aside and a 
 new execution on the judgment awarded on scire facias or motion. 
 Adams v. Smith, 5 Cowen (N. Y.) 280; Magwire v. Marks, 28 Mo. 193, 
 75 Am. Dec. 121; Ritter v. Henshaw, 7 Iowa, 97; Cross v. Zane, 47 Cal. 
 602; and in Tudor v. Taylor, 26 Vt. 444, the right to new execution on 
 proof of failure of title and the power of the court to set aside the sat- 
 isfaction were asserted, but the new execution denied because presump- 
 tion of actual payment arose from delay for 30 years after satisfaction 
 
TO PROCESS ON MOTION. 345 
 
 was entered to ask that it be set aside. The propriety of such action 
 Is also asserted in Whiting v. Bradley, 2 N. H. 79. 
 
 The supreme court of Ohio having followed Freeman v. Caldwell 
 In Tattler v. Lytle, 6 Ohio, 478, held that it was no defense to a bill to 
 foreclose a mortgage that the debt thereby secured had been reduced 
 to judgment and the judgment satisfied by a sale on execution of the 
 mortgaged land which the debtor had sold after the mortgage was re- 
 corded but before the levy was made. Holllster v. Dillon, 4 Ohio St. 
 198. There are several cases in which a judgment creditor has been 
 given a decree in equity for the amount of his judgment when defend- 
 ant's title to the property sold plaintiff on execution to satisfy the judg- 
 ment has failed. Warner v. Helm, 6 111. (1 Gil.) 220; Price v. Boyd, 
 1 Dana (Ky.) 434; M'Ghea v. Ellis, 4 Llttell (Ky.) 244, 14 Am. Dec. 124. 
 In Howard v. North, 5 Tex. 290, which was a suit to recover land 
 because the sale of it on execution was defective, Hemphill, C.J., in 
 behalf of the court, in an elaborate opinion maintained the right of the 
 purchaser under the execution to retain it till the amount paid by him 
 to defendant's use had been refunded. 
 
 ' Caviat Emptor. It cannot be disputed that caviat emptor applies 
 to all purchasers at judicial sales as stated by Gibson, C.J. That is to 
 say, there is no implied warranty either of quality or title by either the 
 judgment debtor, judgment creditor or the officer making the sale. If 
 the quality is deficient it is the purchaser's loss, as was held in the 
 case cited by Gibson, C.J., above. If a stranger has purchased at the 
 sale and title has failed, clearly he can have no recourse to the judg- 
 ment creditor (England y. Clark, 5 HI. [4 Scam.] 486; Dunn v. Prazier, 
 8 Blackf. [Ind.] 432), nor against the officer making the sale. The 
 officer has done what he was bound to do and no more, and no implied 
 warranty of anything can be imputed to him. And as to the judgment 
 creditor the execution, which is said to be the end of the law, would be 
 of little use to him and a dangerous thing if he were liable to an im- 
 plied warranty of the property sold on it. It has even been held that 
 the person buying cannot resist payment of the amount of his bid on 
 the ground that defendant had no title and therefore the consideration 
 had failed, for he purchased only a quitclaim. M'Ghee v. Ellis, 4 Litt. 
 (Ky.) 244, 14 Am. Dec. 124; Farmers' Bank v. Peter, 76 Ky. (13 Bush) 
 591; Humphrey v. Wade, 84 Ky. 391; contra, Julian v. Beal, 26 Ind. 220, 
 89 Am. Dec. 460. If the money is in the hands of the clerk he cannot 
 have it back. Dunn v. Prazier, 8 Blackf, (Ind.) 432. 
 
 Right of Purchaser to Reimbursement. — But although there is 
 no implied warranty by the defendant in the execution it does not fol- 
 low that he Is not bound to pay the purchaser the amount he has paid 
 and which has gone to satisfy the defendant's debts. Accordingly we 
 find numerous decisions to the effect that one who, being a stranger to 
 the proceedings, has paid money at an execution sale for property 
 which did not belong to the defendant in the execution, may recover 
 the amount in an action against the judgment debtor either at law or 
 in equity, though no fraud is imputed to him. Preston v. Harrison, 9 
 Ind. 1; McLaughlin v. Daniel, 8 Dana (Ky.) 182; Johnson v. Caldwell, 
 38 Tex. 218; McLean v. Martin, 45 Mo. 393. 
 
XVI. LIABILITY OF OFFICERS AND THEIR SURETIES. 
 
 1. To THE CKEDITOKS IN WHOSE FAVOH PKOCISSSES ARE ISSUED, 346. 
 
 2. To THE Debtoks Against Whom Pbocesses aee Issued, 346. 
 
 3. To Stkangeks to the Pkocbsses, 346. 
 
 1. TO THE CREDITORS IN WHOSE FAVOR PROCESSES ARE 
 
 ISSUED. 
 
 See "Right to Recover of the Oflacer and his Sureties," ante, p. 
 255. 
 
 2. TO THE DEBTORS AGAINST WHOM PROCESSES ARE ISSUED. 
 
 The oflB.cer must be permitted to steer clear of liability for an 
 inadequate levy. "While the liability of an officer for an excessive levy 
 is undoubted, the instances in which actions for such levies have been 
 sustained are rare, * * * confined to instances where the excess was 
 so great, and so perceptible, that it must be attributed to inexcusable 
 ignorance, or willful oppression." Freeman on Ex. § 253. 
 
 3. TO STRANGERS TO THE PROCESSES. 
 
 LAMMON V. FEUSIER. 
 Ill United States 17. (1883) 
 
 Official Bond Construed — What Acts Are Colore Officii — Decisions Re- 
 viewed — Conflict of Jurisdiction, Property in Custodia Legis. 
 
 The original action was brought in the circuit court of the 
 United States for the District of Nevada, by Henry Feusier, a citi- 
 zen of California against George I. Lammon and three other 
 persons, citizens of Nevada, upon a bond given by Lammon, the . 
 marshal of the United States for that district, as principal, and by 
 the other defendants as his sureties, and conditioned that Lam- 
 mon, "by himself and by his deputies, shall faithfully perform all 
 the duties of the said ofifiice of marshal." [18] It was alleged in 
 the declaration and found by the court (trial by jury having been 
 duly waived) that Lammon, while marshal, and while the bond 
 was in force, having in his hands a writ of attachment on mesne 
 process against the property of one E. D. Feusier, levied i t ug^Ji. 
 the _goods o fthe plaintiff, ji stranger to the writ. On the question 
 of law, whetheFfheraking of the plaintiff's property upon a writ 
 of attachment against another person constituted a breach of official 
 
TO STRANGERS TO THE PROCESSES. 347 
 
 duty on Lammon's part for which his sureties were liable, the cir- 
 cuit judge and the district judge were opposed in opinion, and so 
 certified. The plaintiff having died pending the suit, final judg- 
 ment was rendered for his executors, in accordance with the opin- 
 ion of the circuit jtidge and the defendants sued out t'lis writ of 
 error. 
 
 C. J. Hillyer, for appellant. 
 
 M. N. Stone, for appellee. 
 
 The Court by Gray, J. The bond sued on was given under 
 § 783 of the Revised Statutes, which requires every marshal, be- 
 fore entering on the duties of his office, to give bonds with sure- 
 ties for the faithful performance of those duties by himself and his 
 deputies ; and this action was brought under § 784, which author- 
 izes any person, injured by a breach of the condition of the bond, 
 to sue thereon in his own name and for his sole use. 
 
 The question presented by the record is whether the taking 
 by the marshal upon a writ of attachment on mesne process 
 against one person, of the goods of another, is a breach of the con- 
 dition of his official bond, for which his sureties are liable. 
 
 The marshal, in serving a writ of attachment on mesne pro- 
 cess, which directs him to take the property of a particular person, 
 acts officially. His official duty is to take the property of that per- 
 son, and of that person only ; and to take only such property of his 
 as is subject to be attached, and not property exempt by law from 
 attachment. A neglect to take the attachable property of that per- 
 son, and a taking, upon the writ, [i^^ of the property of another 
 person, or of property exempt from attachment, are equal breaches 
 of his official duty. The taking of the attachable property of the 
 person named in the writ is rightful ; the taking of the property of 
 another person is wrongful; but each being done by the marshal, 
 in ■exeGtttirtg-^tiie-vwdtJn_his iaMs,..4san_jtterapi-ta4ierfQrm^^ 
 offi£ial_ duty, and is an ofificial_ act. 
 
 A person other than the defendant named in the writ, whose 
 property is wrongfully taken, may indeed sue the marshal, like 
 any other wrongdoer, in an action of trespass, to recover damages 
 for the wrongful taking; and neither the official character of the 
 marshal, nor the writ of attachment, affords him any defence to 
 
M8 LIABILITY OF OFFICERS AND THEIR SURETIES. 
 
 such an action. Day v. Gallup, 69 U. S. (2 Wall.) 97; Buck v. 
 Colbath, 70 U. S. (3 Wall.) 334. 
 
 But the remedy of a person, whose property is wrongfully 
 taken by the marshal in officially executing his writ, is not limited 
 to an action against him personally. His official bond is not made 
 to the person in whose behalf the writ is issued, nor to any other 
 individual, but to the government, for the indemnity of all persons 
 injured by the official misconduct of himself or his deputies; and 
 his bond may be put in suit by and for the benefit of any such 
 person. 
 
 When a marshal, upon a writ of attachment on mesne process, 
 takes property of a person not named in the writ, the property is 
 in his official custody, and under the control of the court whose 
 officer he is, and whose writ he is executing; and, according to the 
 decisions of this court, the rightful owner cannot maintain an 
 action of replevin against him, nor recover the property, specific- 
 ally in any way, except in the court from which the writ was 
 issued. . Freeman v. Howe, 65 U. S. (24 How.), 450; Krippen- 
 dorf V. Hyde, no U. S. 276. The principle upon which those 
 decisions are founded is, as declared by Mr. Justice Miller in Buck 
 v: Colbath, above cited, "that whenever property has been seized 
 by an officer of the court, by virtue of its process, the property is to 
 be considered as in the custody of the court, and under its control 
 for the time being ; and that no other court has a right to interfere 
 with that possession, unless it be some court which may have a 
 direct supervisory control over [20] the court whose process has 
 first taken possession, or some superior jurisdiction in the prem- 
 ises." 3 Wall. 341. Because the law had been so settled by this 
 court, the plaintiff in this case failed to maintain replevin in the 
 courts of the State of Nevada against the marshal, for the very 
 taking which is the ground of the present action. Feusier v. Lam- 
 mon, 6 Nev., 209. 
 
 For these reasons the court is of opinion that the taking of 
 goods, upon a writ of attachment, into the custody of the marshal, 
 as the officer of the court that issues the writ, is, whether the goods 
 are the property of the defendant in the writ or of any other per- 
 son,'an official act, and therefore, if wrongful, a breach of the bond 
 
TO STRANGERS TO THE PROCESSES. 849 
 
 given by the marshal for the faithful performance of the duties of 
 his office. 
 
 Under the analagous question, whether the sureties upon the 
 official bond of a sheriff, a coroner, or a constable are responsible 
 for his taking upon a writ, directing him to take the property of 
 one person, the property of another, there has been some differ- 
 ence of opinion in the courts of the several States. 
 
 The view that the sureties are not liable in such a case has 
 been maintained by decisions in the supreme courts of New York, 
 New Jersey, North Carolina and Wisconsin, and perhaps receives 
 support from decisions in Alabama, Mississippi and Indiana. Ex 
 parte Reed, 4 Hill, (N. Y.) 572; People v. Schyler, 5 Barb. Sup. 
 (N. Y.) 166; State v. Conover, 28 N. J. L. (4 Dutcher), 224; 
 State V. Long, 8 Iredell (N. Car.) 415; State v. Brown, 11 Iredell, 
 141; Gerber v. Ackley, 32 Wis. 233, 37 Wis. 43; Governor v. 
 Hancock, 2 Ala. 728 ; McElhaney v. Gilleland, 30 Ala. 183 ; Brown 
 V. Moseley, 11 Sm. & Marsh. (Miss.) 354; Jenkins v. Lemonds, 
 29 Ind. 294; Carey v. State, 34 Ind. 105. 
 
 But in People v. Schuyler, 4 N. Y. 173, the judgment in 5 
 Barb. 166 was reversed, and the case Ex parte Reed, 4 Hill, over- 
 . ruled by a majority of the New York CoUrt of Appeals, with the 
 concurrence of Chief Justice Bronson, who had taken part in de- 
 ciding Reed's Case. The final decision in People v. Schyler has 
 b(>en since treated by the Court of Appeals as settling the law upon 
 this point. Mayor, etc., of New [2i\ York v. Sibberns, 3 Abbott 
 App. 266, 7 Daly, 436; Gumming v. Brown, 43 N. Y. 514; People 
 V. Lucas, 93 N. Y. 585. And the liability of the sureties in such 
 cases has been affirmed by a great preponderance of authority, ^^V 
 including decisions in the highest courts of Pennsylvania, Maine, 
 Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Ne- 
 braska, Texas and California, and in the Supreme Court of the 
 District of Columbia. Carviack v. Gommonwelath, 5 Binn. (Pa.) 
 184; Brunott v. M'Kee, 6 W. & S. (Pa.) 513; Archer v. Noble, 
 3 Me. 418; Harris v. Hanson, 11 Me. 241; Greenfield v. Wil- 
 son, 79 Mass. (13 Gray) 384; Tracy v. Goodwin, 87 Mass. (5 
 Allen,) 409; State v. Jennings, 4 Ohio St. 418; Sangster v. Com- 
 ?>ionwealth, 17 Grattan, (Va.) 124; Commonwealth v. Stockton, 
 
■B50 LIABILITY OF OFFICERS AND THEIR SURETIES. 
 
 S T. B. Monroe, (Ky.) 192; Jewell v. Mills, 3 Bush. (Ky.) 62; 
 State V. Moore, 19 Mo. 366; State v. Fitspatrick, 64 Mo. 185; 
 Charles v. Haskins, 11 Iowa, 329; Turner v. Killian, 12 Neb. 580; 
 Holliman v. Carroll, 27 Texas, 23 ; Van Pelt v. Littler, 14 Cal. 
 194; United States v. ifm^, 3 MacArthur, (D. C.) 27. 
 
 In 5"to^^ V. Jennings, above cited. Chief Justice Thurman 
 said : "The authorities seem to Us quite conclusive, that a seizure 
 cf the goods of A, under color of process against B, is official 
 misconduct in the officer making the seizure ; and it is a breach of 
 the condition of his official bond, where that is that he will faith- 
 fully perform the duties of his office. The reason for this is that 
 the trespass is not the act of a mere individiial, but is perpetrated 
 , colore oMcii. If an officer, under color of a /?. fa. seizes property 
 I of the debtor that is exempt from execution, no one, I imagine, 
 l| would deny that he had thereby, broken the condition of his bond. 
 Wh)' should the law be different if, under color of the same pro- 
 cess, he take the goods of a third person? If the exemption of 
 the goods from the execution in the one case makes their seizure 
 official misconduct, why should it not have the like effect in the 
 other? True, it may sometimes be more difficult to ascertain the 
 ownership of the goods, than to know whether a particular piece of 
 property is exempt from execution; but this is not always the 
 case, and if it were, it would not justify us in restricting to liti- 
 gants the indemnity afforded by the official bond, thus leaving the 
 rest of the community [22] with no other indemnity against 
 •official misconduct than the responsibility of the officer might fur- 
 ni.sli." 4 Ohio St. 423. 
 
 So in Lowell v. Parker, 10 Met. 309, 313, a constable, author- 
 ized by statute to serve only writs of, attachment in which the 
 ■damages were laid at no more than $70, took property upon a writ 
 in which the damages were laid at a greater sum. In an action 
 upon his official bond, it was argued for the sureties that they were 
 no more answerable than if he had acted without any writ. But 
 Chief Justice Shaw, in delivering the opinion of the Supreme 
 Judicial Court of Massachusetts, overruling the objection, and 
 giving judgment for the plaintiff, said: "He was an officer, had 
 authority to attach goods on mesne process on a suitable writ, pro- 
 
TO STRANGERS TO THE PROCESSES. 351 
 
 iessed to have such process, and thereupon took the plaintiff's 
 goods ; that is, the goods of Bean, for whose use and benefit this 
 action is brought, and who, therefore, may be called the plaintiff. 
 He therefore took the goods colore officii, and though he had no 
 sufficient warrant for taking them, yet he is responsible to third 
 persons, because such taking was a breach of his official duty." 
 
 Upon the weight of authority, therefore, as well as upon prin- 
 ciple, the judgment of the circuit court in the case at bar is right, 
 
 and must be 
 
 AfHrmed. 
 As to the protection which the process affords the officer see Ken- 
 iston V. Little, ante, p. 91; Bacon v. Cropsey, ante, p. 69; Bybee v. 
 Ashby, ante, p. 160. 
 
XVII. LIABILITY OF THE CREDITORS. 
 
 w 
 
 1. To THE Officers Executing Their Pkocessbs, 352. 
 
 2. Fob the Tokts of the Officers Exkcdting Their Processes, 354. 
 
 1. TO THE OFFICERS EXECUTING THEIR PROCESSES. 
 
 NELSON V. COOK. 
 17 Illinois 443. (1856) 
 
 Creditor's Liability for Officer's Tort — Contribution Between Tortfeas- 
 ors — Principal's Liability to Indemnity Agent, Reasons for and 
 Limitations of Rule — Effect of Effort to Sustain 
 Levy — Effect of Special Directions. 
 
 Assumpsit commenced by attachment by Isaac Cook, late 
 sheriff of Cook county, against John G. Nelson and others, to 
 recover damages paid by said Cook on judgment against him in 
 favor of the owners of property taken by Cook's deputy on execu- 
 tion in favor of said Nelson et al. on their judgment against A. E. 
 Miller and D. R. Clements. From judgment for plaintiff defend- 
 ants bring error. Reversed. 
 
 C. Beckwith, Williams and Woodbridge, for appellants. 
 
 Burton and Winston, for appellee. 
 
 The Court by Scates, C. J. The principles laid down in Mer- 
 ryweather v. Nixan, 8 Term i86, thai-th ere is no r ight of contri bu- 
 tion as_between tort-fea^«3»J2rJtrespassers^has_been andstillis, 
 recognized as unquestionable law. But this does not affect the 
 right of indemnity where a right of indemnity exists. 
 
 There has been some little diversity of opinion, in the proper 
 application of the rule of distinction, or exception to the general 
 rule, in Merryweather v. Nixan, in agreeing upon the facts and 
 circumstances, which raise the exception. I regard the following 
 distinctions, however, to be well settled and supported by author- 
 ity. Where a party is employed in his usual course of business, 
 as aii auctioneer or warehouseman, to sell, or deliver goods, by one 
 
TO THE OFFICERS EXECUTING THE PROCESSES. 353 
 
 claiming to have right so to do, and the contrary is not known to 
 the employee, he may have an action for an implied promise of 
 indemnity, for the damages he may be compelled to pay to the true 
 owner, for the trespass or conversion committed by such sale or 
 delivery. Betts v. Gibbins, 2 Ad. & El 57, 29 Eng. C. L. 37; 
 A damson v. Jarvis, 4 Bingh. R. 66, 13 Eng. C. L. 403; Story on 
 Agency, § 339. 
 
 But where one is employed or directed to do or commit a i 
 known crime, misdemeanor, trespass or wrong, and the employee 
 or agent knows it to be such, an express promise of indemnity is 
 void, being against the peace and policy of the law. Story on 
 Agency, § 329 ; Brown's Leg. Max. 328, 329 ; Holman v. Johnson^ 
 I Cowp. (Eng.) 341 ; Coventry v. Barton, 17 John. (N. Y.) 142. 
 
 Yet, where the question of title to the property is one of doubt^ 
 controversy or uncertainty, or the act to be done is not an apparent 
 wrong, and the person or agent employed or directed to do the act, 
 does not know that it is a wrong or trespass ; in such case he may 
 sue and recover indemnity from his employer, upon an implied 
 assumption to save him harmless for the act. See authorities last ' 
 above, and note to Farebrother v. Ansley, 1 Campb. 343 ; Gower 
 V. Emery, 18 Me. 79, 83. 
 
 This relation, however, of principal and agent, or employee, 
 is not raised by the simple delivery of a writ of capias, attachment, 
 fieri facias and the like, to the officer, or his deputy. There is no 
 implication of indemnity for their trespasses and wrongs in the 
 execution, or attempt to execute process put into their hands, with- 
 out any specific direction to do particular acts, or take particuhir 
 goods under it. This is illustrated as between the sheriff and 
 his deputy, in the case of Farebrother v. Ar^sley, i Campb. 343 ; 
 and in relation to the liability of plaintiffs in process to the sheriff, 
 by Wilson v. Milner, 2 Campb. 452'; England v. Clark, 5 111. (4 
 Scam.) 486; Coventry v. Barton, 17 [450] John. 142; Averill v. 
 Williams, i Denio (N. Y.) 502; Humphreys v. Pratt, 2 Dow. & 
 Clark (Eng.) 288, 5 Bligh N. S. 154; referred to in 6 M. & W. 
 Ex. R. note 387 ; Marshall v. Hosmer, 4 Mass. 60 ; Bond v. Ward, 
 7 Mass. 123 ; Avery v. Halsey, 14 Pick. (Mass.) 174; Filler v. Fos- 
 sard, 7 Pa. St. 540; Saunders v. Harris, 4 Humph. (Tenn.) 72. 
 
354 LIABILITY OF THE CREDITORS. 
 
 The facts in Gower v. Emery, i8 Me. 79, show a special direc- 
 tion, or will justify its interference, and what the court say, must 
 be understood as upon the case before them. 
 
 Under these well settled principles, the defendant is not en- 
 titled to recover, upon an implied indemnity, nor without an ex- 
 press promise, or particular directions about the levy. Proof that 
 plaintiffs endeavored to sustain the attachment upon the levy, is 
 wholly insufficient for this purpose, and none other appears. 
 Again, a recovery in trespass for taking, or in trover for convert- 
 ing chattels, followed by satisfaction, vests the property in the de- 
 fendant: "Solutio pretii emptionis loco hahetur." Adams v. 
 Broughton, 2 Strange 1078 ; Cooper v. Shepherd, 3 Mann. G. & 
 S. 266, 54 Eng. C. L. 265. 
 
 Thus treating the sheriff as agent, in whom the property was 
 vested by the recovery, for the benefit of the plaintiffs, his prin- 
 cipals, he may forfeit his title to repayment of his advances and 
 ^disbursement, by his own gross negligence, fraud or misconduct, 
 ^nd be excluded from all remedy against his principal. Story on 
 Agency, § 348. 
 
 The defendant misapplied the property, and converted it to 
 his own use by a sale and payment to another, of the proceeds. 
 
 Judgment reversed and cause remanded. 
 
 Judgment reversed. 
 
 If the judgment creditor expressly directed the levy on the specific 
 
 property, which did not belong to the judgment debtor, he is liable to 
 
 the owner in trover either jointly with the ofllcer or alone. Hale v. 
 
 Ames, S T. B. Mon. (Ky.) 143, and note to same case in 15 Am. Dec. 150. 
 
 FOR THE TORTS OF THE OFFICERS EXECUTING THEIR 
 PROCESSES. 
 
 See Nelson v. Cook, above. 
 
XVIII. GARNISHMENT AS A DEFENSE. 
 
 1. Gabnishmbnt Pending, 355. 
 
 2. Gabnishment Judgment Paid ok Unpaid, 358. 
 
 3. Necessasy Proof to Make Oct a Defense, 358. 
 
 1. GARNISHMENT PENDING. 
 
 YAZOO & MISSISSIPPI VALLEY RY. CO. v. FULTON. 
 71 Mississippi 385, 14 South. 271. (1893) 
 
 Effect of Garnishment on Title to Property or Debt — Effect on Defend- 
 ant's Title of Judgment Against Garnishee — Effect of Each on 
 His Right to Action, Judgment and Execution — How 
 Garnishment Should Be Pleaded as a Defense. ' 
 
 Two actions by J. W. Fulton against Yazoo & M. V. R. R. 
 Co. for damages for a mule injured and an ox killed by defend- 
 ant's trains. Pleas by defendant that it had been summoned as 
 garnishee in a suit against the plaintiff in Tennessee before these 
 suits were commenced and that judgment had been rendered 
 against it. Plaintiff's actions coming to the circuit court by de- 
 fendant's appeal from the justice's judgment, the circuit court con- 
 solidated the actions and gave judgment for plaintiff and defend- 
 ant again appeals. Reversed. 
 
 Mayes &■ Harris, for appellant. 
 
 F. A. Montgomery, Jr., for appellee. 
 
 The Court by Cooper, /. * * * The defendant introduced in 
 evidence the record of the attachment suit, and is entitled to have 
 it considered in any light in which it should have been available 
 to it. 
 
 There is a wide diversity of views entertained by the courts 
 of the various states as to the effect of a judgment against a gar- 
 nishee who is afterwards sued by the original creditor, the de- 
 fendant in attachment or judgment. In England it is held that 
 a judgment against the garnishee is a bar to an action upon the 
 same debt. McDaniel v. Hughes, 3 East, 367. The courts of 
 
356 GARNISHMENT AS A DEFENSE. 
 
 Florida, Indiana, Kentucky, Maine, and Massachusetts have an- 
 nounced the same rule. Sessions v. Stevens, i Florida, 233; 
 Covert V. Nelson, 8 Blackford (Ind.) 265 ; King v. Vance, 46 Ind. 
 246; Coburn v. Currens, 64 Ky. (i Bush) 242; McAllister v. 
 Brooks, 22 Maine, 80 ; Norris v. Hall, 18 Id. 332 ; Perkins v. 
 Parker, 1 Mass. 117; Hull v. Blake, 13 /d 152. 
 
 In other states and in the supreme court of the United States, 
 it is held that the judgment or pendency of garnishment proceed- 
 ings may be pleaded in abatement of the plaintiff's suit. Embree 
 V. Hanna, 5 Johns. loi ; Haselton, v. Monroe, 18 N. H. 598 ; Ladd 
 V. Jacobs, 64 Maine, 347; Irvine v. Lumbermen's Bank, 2 Watts 
 & Serg. (Pa.) 190; Near v. Mitchell, 23 Mich. 382; Clise v. Free- 
 borne, 27 Iowa, 280 ; Broivn v. Somerville, 8 Md., 444 ; Mattingly 
 V. Boyd, 20 How. (U. S.) 128. [390] 
 
 In others, it has been held that, though the proceeding or 
 judgment^ may not be pleaded in abatement or bar of the suit of 
 tKe creditor, yet the court, in entering up judgment, would so 
 / frame the same as to protect the defendant, garnishee, in the other 
 action from being called on to pay the same debt twice. Meriam 
 V. Rundlett, 13 Pick. 511 ; Crawford v. Slade, 9 Ala. 887; Smith 
 V. Blatchford, 2 Ind. 184; McFadden v. O'Donnell, 18 Cal. 160; 
 Pierson v. McCahill, 21 Id. 122; Shealy v. Toole, 56 Ga. 210; 
 Hicks V. Gleason, 20 Vt. 139. 
 
 The course of decision in some of the states has not, prob- 
 ably, been at all times consistent, and we have not attempted to 
 discover how the respective courts now hold, for that is immate- 
 rial. The different views entertained, and the general classifica- 
 tion of the decisions, have been deduced from a review of the text 
 of Drake on Attachments, ch. 38, and the cases therein cited. The 
 question has never been decided in this state, though in Kellogg 
 V. Freeman, 50 Miss. 127, there is a dictum to the effect that by a 
 judgment against the garnishee the debt he theretofore owed to the 
 defendant "is transferfed by operation of law," and inures to the 
 ^ benefit of the plaintiff in attachment. We cannot assent to the cor- 
 r ectness of this propo sition. The plaintiff inr"atScfrRrent, seek- 
 ing merely to enforce a pecuniary demand against his debtor, 
 does not, by the judgment against the debtor, acquire the legal 
 
BEFORE JUDGMENT IN GARNISHMENT. 357 
 
 title to his estate, real or personal. The judgment is but a step 
 in the enforcement of thp demand of the plaintiff, and subjects the 
 estate of the debtor to the process of the court to pay the debt 
 awarded. So also the garnishment of one owing the defendant a 
 sum of money or having his effects in possession, and the judg- 
 ment against the garnishee directing him to pay over the money 
 or deliver the property to the proper officers, are but other steps 
 in the same direction. No property in the debt due or the thing 
 surrendered by the garnishee passes to the plaintiff by the judg- 
 ment, for, if such were the case, it would discharge, pro tanto, the 
 judgment, [391] which would thus be self-executing and self-end- 
 ing. In truth, all that the plaintiff secures is the right to have the , 
 garnishee pay to him the debt which, before that, was due to the 
 defendant. Payment by the garnishee is the only thing which 
 can release him and bar the right of his creditor. The mere fact, - 
 therefore, that a judgment has been rendered against the garni-, 
 shee is not available to him in bar of a suit afterwards or before 
 instituted against him by his creditor. 
 
 But since the attaching creditor, by his judgment, has se- 
 cured the right to issue execution against the garnishee, it would 
 be inequitable to permit the defendant in attachment to secure, 
 another judgment, with the right of instant execution to collect- 
 the same debt. The debt is yet his, and he is interested in its col- 
 
 ■ lection, but it has been impounded under legal process, and a 
 charge imposed which is superior in right to his. To meet the 
 exigency and preserve as far as practicable all the rights of all the 
 parties, a number of the courts, as will be seen by reference to the 
 citations above made, have held that the right of action or the right ' 
 of execution should be suspended until the, lien of the attaching 
 
 creditor is discharged. J[n those jur isdic tions in which it - i? he]d 
 
 that the ri^ht of a.ct.ion..is.sugpended,,, the defen dant m ay plead in 
 
 _ abatement of the suit the pendency ^ofth^^gaxnishment .^tCOCfifidr 
 ings orJ bfriaeUthatJjidgment has^b^efl, t;fnrlerf.(j^ rlff^'iff'^t ^"'"^ 
 
 _J^££eiBU-.Jn those in which the right to sue is upheld, protection 
 is afforded the defendant by suspending execution of the judg- 
 ment tmtil the defendant is relieved of liability under the judgment 
 
Sm GARNISHMENT AS A DEFENSE. 
 
 against him as garnishee. In iBOSt-in§tances, the practical effect 
 would be the same under either rule. ' ' ^ 
 
 In view of the "facts-that it may sometimes be of importance 
 to the creditor to have a judicial determination of his rights at* as 
 early a time as possible, and that the debtor cannot be injured by 
 the mere rendition of the second judgment, we think the better 
 rule is that the creditor may proceed to judgment, but that exe- 
 cution thereof should be stayed to an [392] amount equal to that 
 for which the defendant is sought to be charged as garnishee in a 
 pending suit, or for which judgment has been rendered against 
 him. 
 
 The judgment of the court in this cause should have been for 
 the plaintiff, but with a stay of execution as to eighty dollars, with 
 interest from September 9, 1893 — the date of the judgment 
 against the garnishee — until the defendant should be discharged 
 from liability thereunder. In failing to incorporate this saying in 
 the judgment, the court below committed error, for which its 
 judgment must be 
 
 Reversed, but a proper judgment may be entered here. 
 
 2. GARNISHMENT JUDGMENT PAID OR UNPAID. 
 
 See Yazoo & M. V. Ry. Co. v. Pulton, above. 
 
 3. NECESSARY PROOF TO MAKE ofcl A DEFENSE. 
 
 WELLS V. AMER^^ EXPRESS CO. 
 55 Wisconsin 23, 12 NyS^. 4^, 42 Am. Rep. 695. (1882) 
 Garnishment — Jurisdiction^^^ffect of Payment under Garnishment as 
 a Defense — Proper Manner of Pleading — Necessary Proof — ^Pre- 
 sumption of Regularity — Proving Contents of Lost Records. 
 
 Action by Wells against American Express Company for 
 money sent him by express and not delivered. From judgment 
 for plaintiff defendant brings error. Affirmed. 
 
 The same case on former appeals is reported in 44 Wis. 342, 
 and 49 Wis. 224. Among other defenses the defendant set up 
 payment under garnishment proceedings. The money was con- 
 signed to "Wells & Cartwright," but belonged to Wells alone, and 
 the garnishments were in suits against Cartwright. 
 
 Finches, Lynde & Miller, for appellants. 
 
 Fish & Dodge, for appellee. 
 
PLEADINGS AND PROOF. 359 
 
 The Court by Orton, j_ * * * The plaintiff is entitled to re- 
 cover, unless something was done which was tantamount to a de- 
 livery of the money to Cartwright before this claim of the plaintiff 
 was set up .and demand made by him for it as his own property, 
 exclusive of Cartwrigfht. This leads to the question whether this 
 money has been subjected to the garnishment of the defendant in 
 cases or on judgment against Cartwright, before this claim and 
 demand of the plaintiff for all of the money as his own, which is 
 the only pretense of its delivery to the consignees, [jj] * * * 
 The record evidence in this case, which consists exclusively of the 
 docket entries of the justice of the peace who entertained juris- 
 diction of the garnishee proceedings against the defendant, must 
 stand or fall by itself. It seems that the papers are lost or 
 cannot be found, and there was no attempt to prove their contents. 
 The entries in the docket of a justice showing appearance of the 
 defendant would be sufficient to warrant the judgment in ordinary 
 [34] common law causes. But the proceeding of garnishment is 
 special and statutory, and in derogation of the common law. It is 
 a proceeding by which the debtor is compelled to pay another than 
 his creditor, and the right of the creditor is transferred to another 
 against his will ; and this can only be done by force of the statute 
 strictly pursued. It is in the nature of a proceeding in rem, by\ 
 which the plaintiff is sought to be invested with the right to appro- \ 
 priate to the satisfaction of his claim against the defendant a debt 
 due from the garnishee to him. This being the nature of the pro- 
 ceeding, the principle is elementary that jurisdiction of the court 
 therein must affirmatively appear. Robertson v. Kinkhead, 26 
 Wis. 560 ; Supervisors of Crawford Co. v. Le Clerc, 3 Pin. 325 ; 
 In re Booth and Ry craft, 3 Wis. .157. 
 
 The late learned and eminent chief justice of this court 
 (Ryan), in Steen v. Norton, 45 Wis. 412, uses this langxiage in 
 respect to this proceeding: "It is not the policy of the statute to 
 place this anomalous action, like ordinary actions, at the mere dis- 
 cretion of the plaintiff, or to give justices of the peace unqualified 
 jurisdiction of it, as in ordinary actions, where every person can 
 become a plaintiff, have process, and put the justice's jurisdiction 
 in motion on demand. The plaintiff in garnishee proceedings, as 
 
360 GARNISHMENT AS A DEFENSE. 
 
 in attachment as mesne process, replevin, and the like, can put in 
 motion the jurisdiction of the justice only by complying with statu- 
 tory prerequisites. And the justice takes jurisdiction of the pro- 
 ceeding only upon the plaintiff's compliance with the prelimi- 
 naries which the statute makes the condition of jurisdiction. In 
 order to entitle a plaintiff to have recourse to the process of gar- 
 nishment, in order to confer on the justice jurisdiction to entertain 
 it, he must -first make the affidavit required by the statute. . . 
 An affidavit materially defective stands as no affidavit. All pro- 
 ceedings founded on a materially defective affidavit are coram 
 non judice. And no appearance, no submission of the garnishee, 
 can operate to [55] waive the defect of jurisdiction. He 
 
 cannot voluntarily appear and substitute his creditor's creditor for 
 his own, because that goes to jurisdiction of the subject, not to 
 jurisdiction of his person." 
 
 In most and perhaps all of the cases of garnishment sought 
 to be 'introduced in evidence in defense of this action, there is an 
 entry by the justice that an affidavit was made and filed. What 
 the affidavit contained does not appear. The affidavit, being the 
 prerequisite of jurisdiction, must not only appear upon the rec- 
 ords, but be strictly sufficient; and, not appearing, no jurisdiction 
 whatever is shown in the justice. This is a fatal objection to the 
 proceedings, and the circuit court properly refused to admit them 
 in evidence. * * * [jd] * * * 
 
 The judgment of the circuit court is affirmed. 
 
 Lyon, /., took no part. 
 
 The appellant moved for a rehearing ; and the following opin- 
 ion was filed May 10, 1882 : 
 
 The Court by Orton, /. * * * [57] * * * All of these docket 
 entries were ruled out, presumably on these grounds — [that 
 the jurisdiction of the justice did not appear]. No othei 
 evidence, of record or otherwise, was offered of the garnishee pro- 
 ceedings, and this was the only point in respect to such proceed- 
 ings before this court on the appeal. The ruling of the circuit 
 Court was sustained on the ground that the jurisdiction of the jus- 
 tices in the proceedings did not appear. It is now complained and 
 
PLEADINGS AND PROOF. 361 
 
 contended that the question of jurisdiction was not raised, and 
 was therefore waived. That objection is sufficiently answered by 
 the foregoing references. But, aside from this specific objec- 
 tion, the docket entries were clearly incompetent without first 
 showing jurisdiction, and such jurisdiction was not shown by such 
 entries. In the brief of the learned counsel of the respondent the 
 point was distinctly made that the proceedings, so far as sought to 
 be shown, were void for want of jurisdiction. This point was an- 
 swered in the brief of the learned counsel of the appellant as fol- 
 lows : "The defendant was adjudged by the justice's court to pay 
 the money to the creditors suing out the garnishees. The papers 
 are all lost. There is nothing left but docket entries ; nor does it 
 matter, as we see, whether the justice's court was right or wrong 
 in its decision. The money was subject to garnishment." 
 
 No objection was made, it is complained, that the court had 
 no jurisdiction. We have seen that such objection was distinctly 
 made, and more than once. No objection was made to the intro- 
 duction of the papers in the garnishee proceedings, including the 
 affidavit, by which only jurisdiction could be shown, because they 
 were not offered, and there was no offer to prove their contents 
 if lost. It would seem that the contention of the learned counsel 
 of the appellant arises from a misapprehension of the record, and 
 from not remembering that the stipulation, which probably dis- 
 penses [38] with the proof of the garnishee proceedings beyond 
 
 the docket entries, had been withdrawn previous to the last trial. 
 * * * 
 
 By the Court. — Thfe motion for reargument is denied, with 
 $25 costs. 
 
INDEX. 
 
 The Table of Contents (page 5) is the best general index. In 
 these columns are ihdexed minor matters not prominent in that table. 
 
 ABANDONMENT OF LEVY, 
 186, 250, 295--306, 329. 
 
 ADMINISTRATOKS: Execu- 
 tions against, 91-96. Gar- 
 nishment against, 216, 102. 
 
 AFFIDAVIT for attachment, 
 form of, 52. 
 
 AGENCY: Payment of money 
 through agent, when title 
 passes, 132-133. 
 
 APPEAL: By plaintiff in at- 
 tachment preserves lien, 307. 
 Power of lower court after, 
 307. 
 
 APPEARANCE TO ACTION: 
 Effect of, 18«, 358-361. 
 
 APPLICATION for remedial 
 process, form of, 76. 
 
 ASSIGNEE : Right to use proc- 
 ess, 76-79. 
 
 ASSIGNMENT: Of judgments, 
 76-79, 104-106. By giving or- 
 ders, 241. 
 
 ATTACHMENT: Defined, 17. 
 Grounds for, etc., 32-59. Af- 
 fidavit, 52. What may be 
 taken under, 184-187. 
 
 ATTORNEY: Right to control 
 process, 76-79, 81. 
 
 BANK-BILLS: Liability to 
 process, 184. 
 
 BIBLIOGRAPHY, 18. 
 
 BILLS AND NOTES: See 
 "Checks and Drafts," "Com- 
 mercial Paper" and "Choses 
 in Action." 
 
 BONDS: Of sheriffs, liability 
 of sureties, 267-268, 346-351. 
 On appeal or to release prop- 
 erty from levy, effect on lien, 
 311—31 8 
 
 BREAKING DOORS: To exe- 
 cute process, 167. 
 
 BURDEN OF PROOF: That 
 process was issued with au- 
 thority, 84, 149-153. Of gar- 
 nishee's liability, 243. 
 
 CAPIAS : Defined, 16. Right to 
 use, 172-176. 
 
 CARRIERS: Garnishment 
 against for property in tran- 
 sit, 112. 
 
 CAVIAT EMPTOR: In judicial 
 sales, 342-345. 
 
 CHATTELS: Liability to proc- 
 ess, 183-244. 
 
 CHECKS AND DRAFTS: As 
 assignments of fund garnish- 
 ed, 241. 
 
 CHOSES IN ACTION: Liabil- 
 ity to process, 208. 
 
 CLAIMANTS: Right to inter- 
 vene, 43. Rights and duties 
 of parties and court to bring 
 in, 207. Effect of bond by— 
 on lien, 317. 
 
 CLERKS OF COURTS: Right 
 to issue processes on judg- 
 ments, 81, 84, 338. 
 
 COMMERCIAL PAPER: Gar- 
 nishment of demands evi- 
 denced by, 234, 241. 
 
 CONFLICT OF JURISDIC- 
 TION: Liability of proper- 
 ty in possession of one court 
 to process from another, 212- 
 224, 346-351. 
 
 CONTEMPT OF COURT: In 
 failing to execute process or 
 disregarding process of an- 
 other court, 277. 
 
 CONTRACT: Defined, 20. Ob- 
 ligation of defined, 21. 
 
 CONSTABLES: See "Officers." 
 
 CONSTITUTIONAL LAW : 
 Legislative control of reme- 
 dial processes, 19-28. Divi- 
 sion of functions of govern- 
 ment, delegation of legisla- 
 tive function to make appro- 
 priations ana audit accounts, 
 128 
 
 CORPORATIONS , PRIVATE: 
 Executions against 104-111. 
 As garnishees, 112-120. 
 
 CORPORATION PUBLIC: Pro- 
 cesses against, 120-127. 
 
3ti4 
 
 COSTS: Of sale, to whom 
 charged, 202. 
 
 COURTS: Judge at chambers 
 as the ' court, 167. Control 
 over their process, 167. Pow- 
 er to set aside satisfaction of 
 judgments and give new 
 process, 338-345. 
 
 CREDITOR'S BILL: Garnish- 
 ing creditor's lien support, 
 287. 
 
 DAMAGES: Measure of, when 
 oflBcer fails to execute writ, 
 264-266. Certainty of to sus- 
 tain attachment, 39. 
 
 DEATH OP PARTY: Effect of, 
 on rights concerning process- 
 es, 181, 292. 
 
 DEBTS FOR WHICH GARNI- 
 SHEE MAY BE CHARGED: 
 Above all, set-offs, 187-192. 
 Which would sustain assump- 
 sit, 231. Absolute or contin- 
 gent, 224-229. Liability for 
 torts, 231. Payable in kind, 
 231. Evidenced by current 
 note, 234. Secured, 232. In 
 suit or judgment, 220. Pro- 
 ceeds of exempt property, 
 237. 
 
 DEFENSES: Available to gar- 
 nishees, 187-190. Garnish- 
 ment as a defense, 355-358. 
 
 DEPUTIES: And sheriff treat- 
 ed as one person, 257-262. 
 
 DESCRIPTION: What essen- 
 tial to valid levy on land, 339. 
 
 DOORS: Officer's right to 
 break open, 164. 
 
 DRAFTS AND CHECKS: As 
 assignment of fund, 241. 
 
 ELEGIT: Origin and nature, 
 16, 172. Right to re-extent 
 on failure of title, 343. 
 
 ELECTION OF REMEDIES: 
 Concurrent use of processes, 
 135-140. Levy on part as re- 
 lease of remainder, 250. 
 Choice of capias as waiver of 
 judgment lien on land, 304. 
 
 ESCAPES : Officer's liability 
 for, 272. Officer's right to re- 
 take, 325. 
 
 EXECUTORS: See "Adminis- 
 trators." 
 
 EXECUTION: Forms or kinds, 
 15-17. On what judgments 
 available, 29. At what stage 
 available, 65-78, 106-107. 
 
 To whom available, 76-86. 
 Against whom available, 87- 
 134. Concurrent use of sev- 
 eral, 135-140. What courts 
 may issue, 141-149. How exe- 
 cuted, 148-171. What property 
 liable, 172-244. Lien under, 
 245-292. Priority, 293-294. 
 Form and recitals to show 
 jurisdiction of the court is- 
 suing it, 149-153. 
 
 EXEMPTIONS : Proceeds of 
 exempt property, 237. Of 
 persons exempt from liability 
 to execution and garnish- 
 ment, 87-134. 
 
 EVIDENCE: By parol to iden- 
 tify property levied on, 291, 
 339. 
 
 FRACTIONAL INTERESTS: 
 Liability to process, 203-207, 
 
 FRAUDS : Statute of, 293. 
 
 FRAUDULENT CONVEY- 
 ANCE: Charging garnishee 
 for property held by, 197. 
 
 GARNISHMENT: By prevail- 
 ing defendant, 79. Against 
 executors and administrators, 
 216, 102. Against a party ta 
 the action, 97-104. Delivery 
 to defendant after service of 
 garnishment, 112-11'4. Use 
 concurrent with execution, 
 135-140. Date from which 
 garnishee's liability is meas- 
 ured, 209. What may be tak- 
 en by, 187-144. Lien ac- 
 quired by, 282-287. As a de- 
 fense, 288-290, 355-361. Split- 
 ting demands by — rights of 
 garnishee, 203-208. 
 
 GOVERNMENT: Special rights 
 under remedial processes. 
 172-178. Executions against, 
 128. As garnishee, 132. 
 
 IDENTITY: Of property levied 
 on, necessary description, 
 parol proof, 291, 339. 
 
 IMPRISONMENT FOR DEBT, 
 172-176, 23, 304. . 
 
 INDEMNITY : Officer's right 
 to, 277, 295, 352. 
 
 INDORSEMENT: Of levy on 
 writ, 253-254. 
 
 INFANTS: Execution against, 
 87. Garnishment against, 89. 
 As officers, 318. 
 INJUNCTION: Against execu- 
 tion, effect on lien, 311-317. 
 
INDEX. 
 
 865 
 
 INSANE PERSONS: Execu- 
 tion and attachment against, 
 87—89 
 JUDGMENTS: Formal entry 
 and essentials, 29, 65. Plead- 
 ing and proof of, as defense, 
 355, 359. Setting aside s'atis- 
 faction, 318-336. Effect of 
 setting aside on lien of, 316. 
 Assignment of, 75-76, 104- 
 105. Liens of, 176-181. 
 JUDGE'S AT CHAMBERS: 
 
 Powers of, 167. 
 JUDICIAL SALES: Who may 
 
 make, 157-164, 267-268, 302. 
 JURISDICTION: Over proper- 
 ty beyond the state, 112. 
 Should appear on face of 
 writ, 149-154. Proof of in 
 garnishment pleaded in de- 
 fense, 358-361. Of special 
 courts to Issue statutory rem- 
 edial process, 141. To issue 
 process on judgments of oth- 
 er courts, 142-148. 
 
 KING: Special rights under 
 remedial processes, 171, 178. 
 
 LAND: Liability to process, 
 172-183. 
 
 LEVY: When it may be made, 
 156, 251-252. Indorsement on 
 writ, 253-254. Not essential 
 to garnishment lien, 282-287. 
 Form and essentials, 164-166. 
 Effect on title of defendant, 
 181. 
 
 LIEN: Of judgments, 176-181. 
 Under execution attachment 
 and garnishment, character, 
 245-292. Priority or when it 
 attaches, 180, 293-294. How 
 lost, 295-317. 
 
 LIMITATIONS: Statute of, 23. 
 
 MANDAMUS: To compel issu- 
 ance of execution, 85. To 
 compel public oflacers to levy 
 and collect taxes to pay a 
 judgment, 25, 122. 
 
 MARRIED WOMEN: Execu- 
 tion and attachment against, 
 87-89. 
 
 MARSHALING: Between judg- 
 ment creditors, 333-334. 
 
 MONEY: Liability to process, 
 184. 
 
 MORTGAGES: Liability of 
 mortgagor's interest to proc- 
 ess, 200. Manner of sale, 200. 
 
 MUNICIPAL CORPORA- 
 
 TIONS: Executions and gar- 
 nishment against, 123. 
 NOTES AND BILLS: See 
 "Checks and Drafts," and 
 "Commercial paper." 
 OBLIGATION: Defined, 21, 57. 
 
 Fraudulently incurred, 5'7. 
 OFFICERS: Liability to de- 
 fendant, 347. Liability to 
 strangers, 347. Liability to 
 creditors, 255-272. Protec- 
 tion which writ affords them, 
 69, 91, 160. Justification in 
 refusing to execute process, 
 69, 160, 168, 295. Who may 
 execute process, 157-166. 
 Right to break doors, etc., 
 164. Right to indemnity, 295- 
 352. Powers after expiration 
 of term, 267. Duty to obey 
 orders of court, 167. Dili- 
 gence required of, 257-262. 
 Liability for lost goods, 269- 
 273. De facto infant officers, 
 318-327. 
 
 OUTLINES: See Table of Con- 
 tents and pages 13 and 15. 
 
 ORDERS: See "Checks and 
 Drafts." 
 
 PARTNERS: Liability of one 
 partner's interest to process, 
 203-207. Ground for attach- 
 ment against, 47-50. 
 
 PAYMENT: Effect of levy as, 
 318-330. Recovery against 
 garnishee's as, 330. Applica- 
 tion of, see "Priority." By 
 sale of stranger's property or 
 exempt property, 337-345. 
 
 POSSESSION: Necessary to 
 charge a garnishee, 191-200. 
 importance of officer taking 
 and retaining, 186, 298, 318- 
 322. 
 
 PRIORITY OF LIEN UNDER 
 PROCESS, 245-294. 
 
 PROCEEDURB: Essential to 
 perfect title by attachment, 
 garnishment, etc., 187-190, 
 288-292, 358-361. 
 
 PROCESSES: See "Writs." 
 
 PROMISSORY NOTES. See 
 "Commercial Paper." 
 
 RATIFICATION: Of unauthor- 
 ized issuance of process, 84. 
 
 REAL PROPERTY: Liability 
 to remedial process, 172-183. 
 
 RECEIPTOR: Liability of ofli- 
 
366 
 
 INBEX. 
 
 cer for property last through, 
 272. 
 
 RECEIVER: Garnishiag cred- 
 itor's right to, 200-202, 286. 
 
 RECORDING LEVY: Whose 
 duty, effect of notice without 
 recording, 291. 
 
 iREDEMPTION RIGHT: Liable 
 to sale on execution or at- 
 tachment, 341-342. 
 
 EBMEDIES: Defined, 13. 
 
 (REMEDIAL PROCESSES: Ex- 
 plained a;nd outlined, 15. 
 
 eSPLBVIN: Title necessary to 
 .sustain, 85. Against whom 
 maintainable, 134. 
 
 7RETRO ACTIVE LAWS: What 
 are, 26-28. 
 
 .RETURN OF PROCESS: Lia- 
 bility of officer for failure to 
 make, 263-266. Made late, 
 stranger's' right to complain, 
 297-298, 264. 
 
 )SATISPACTION: Entering and 
 canceling, 337-346. By levy 
 merely, 318-330. By waiver 
 of priority, 331-336. 
 
 •SCIRE FACIAS: Origin and 
 nature, 173. 
 
 .SECURED DEMANDS: Garn- 
 ishment of, 232. 
 
 'SERVICE OP PROCESS: Ef- 
 fect of personal service and 
 service by publication, 185- 
 187. 
 
 and service by publication, 
 185-187. 
 
 'SET-OFF: As a defense to gar- 
 nishment, 187-190. 
 
 •SHERIFFS: See "Officers." 
 
 .•STATUTES: Authorizing tran- 
 scripts of judgments to be 
 filed in other courts, 145-148. 
 Westm. 2d. c. 18, and com- 
 ments on other parts of same 
 statute, 172-176. 5 Geo. II. au- 
 thorizing sale of lands on exe- 
 cution, 179. Of limitations, 23. 
 Repealing or restricting use 
 of remedy, constitutionality, 
 19-28. Retroactive, 26-28. 
 ■ Authorizing suits against the 
 government, 128. Of frauds, 
 29 Car. II, 293. 
 
 STAY OP PROCESS. Valldity 
 of process issued during, 69. 
 Effect on lien, 311-317". 
 Court's power after writ 
 given to officer, 167. 
 
 SUBROGATION: Between exe- 
 cution and judgment credit- 
 ors, 333-334. 
 
 SUPERSEDEAS: Effect on lien 
 of writ, 311-317. 
 
 SURETY: Discharge of by 
 misapplication of funds or 
 waiver of priority, 331-336. ' 
 
 TENANTS IN COMMON: Li- 
 ability of fractional interest to- 
 process, 203-207. 
 
 TORTS: Demands for not gar- ' 
 nishable, 229. Of officers, / 
 suerty's liability for, 346. Of I 
 officers, creditor's liability i 
 for, 352. 
 
 VENDITIONI EXPONAS: Na- f 
 ture of writ and powers 
 under it, 299, 267. 
 
 VOID AND VOIDABLE: Writs I 
 distinguished, 71, 162. 
 
 WAIVER: See "Abandonment" ' 
 
 "Election of Remedies." 
 'WARRANTY: In judicial sales, | 
 ■; 342-345.'.' 
 
 ! WRITS: Look under head of) 
 each writ for reference to ' 
 matter peculiar to that writ. ] 
 
 Various — explained, 15-17. 
 Void which are no protection, 
 and voidable which protect 
 the officer, 71,162. When, how, 
 and by whom executed, 149- 
 171. What courts may issue, 
 141-148. Concurrent use sev- 
 eral, 135-140. Against whom, 
 available, 87-134. To whom 
 available, 76-86. What courts 
 may issue, 141-148. What 
 may be taken, 172-244. Lien 
 or right under, 245-292. Pri- 
 ority, 293-294. Liability of 
 officer for failure to execute 
 or return, 263-268. Right of 
 strangers to complain of late 
 return, 297-298, 254.. Effect 
 of service personal and by 
 publication, 185-187.