Anderson v. Young's Executors

The opinion of the Court, filed was delivered by Lewis, J. — On the 23d January, 1843, a foreign attachment was issued by Young’s executors against David Cline, which was executed on the 30th January, 1843, by attaching the amount of a promissory note due by Espy L. Anderson to Alfred Cline, in the hands of Anderson as garnishee. On the 7th February, 1847, judgment was obtained against Cline, the defendant in the attachment. A scire facias thereupon issued against Anderson the garnishee, who pleaded nulla bona, on which issue was joined. On [447] the trial of this issue it appeared in evidence that on 1st January, 1842, Anderson gave a promissory note for $1500, payable to Alfred Cline, or order, six months after date. • On 22d January, 1843, Alfred Cline assigned the note to P. D. Poulke. On the 12th October, 1843, P. D. Poulke assigned it to E. M. Mealy. These assignments were endorsed on the note and purported to be for value received. The note, at the time of the trial, was in the possession of Anderson. The deposition of E. M. Mealy was offered by the garnishee, to prove that the assignment from Cline to Poulke was made before the issuing of the attachment, and was for a valuable consideration, and to prove further, that the assignment to the witness was made solely to enable him to collect the note. The deposition was rejected, and this is the first error assigned. The party objecting to a witness may examine him on his voir dire, or resort to other evidence to establish the objection; but after electing one of these courses he cannot resort to the other. Nor can the witness himself be received at the instance of the party offering him, to repel the objections on the ground of interest established by other evidence. As the evidence stood when the deposition of E. M. Mealy was offered, he appeared to be the equitable assignee of the note in controversy. As the possession of it by Anderson is relied upon as primd facie evidence of its payment, it is proper to examine the case in that aspect. The competency of the witness may be decided upon by considering the effect which the verdict may have upon his interest. A foreign attachment is not altogether a proceeding in personam. It is in the nature of a proceeding in rem, to which, for the purposes of the particular action, all the world are parties. In a writ of foreign attachment, personal notice to the defendant is not required. On the contrary, the action proceeds on the ground that actual notice cannot be given. By the custom of London, from which our proceedings are derived, the garnishee was not warned until the sergeant-at-mace made return to the process awarded against the defendant, that he had nothing in the city or the liberties thereof, whereby he could be summoned, nor toas to le found within the same. After 'this return, and four defaults entered, judgment was rendered against him; under which the money, or effects of the defendant, in the hands of the garnishee, might be levied in satisfaction of the judgment. The domicil of the debtor was immaterial. But in Pennsylvania, the Act of 13th June, 1836, has made a change in this particular. A foreign attachment will not lie here, if the debtor resides within the Commonwealth, or is within the county at the time of the issuing of the writ. It is precisely because actual notice cannot le given, that the law has provided this method for the collection of debts against [448] non-resident debtors without it, and has prescribed what shall be .deemed constructive notice. If the plaintiff, who is to be benefited by the proceeding, be not required to give abtual notice to the defendant, on account of the impossibility or difficulty attending it, the reason against imposing that burden upon the garnishee is much stronger, for he has no interest whatever to be promoted by the proceedings. If the judgment be valid for the purpose of compelling payment of the debt to the plaintiff, it must be equally effective for the garnishee’s protection against a repetition of the demand. We must administer the law as a system intended to promote justice, and not as a snare to entrap the innocent. It may seem hard that the defendant in the attachment shall lose his demand against the garnishee, by a proceeding of which he had no notice. But if he owes the debt claimed by the attaching creditor, there is no hardship in being compelled to pay it; if he does not owe it, the law has provided an ample remedy if he disprove or avoid it within a year and a day after execution awarded against the garnishee. The execution cannot be awarded until the debt is due and payable, so that an action might have been brought for its recovery by the defendant in the attachment. His neglect to pursue his claim bars his right. It is a statute of limitation. The legislative power may fix a longer or shorter period of limitation, as justice or policy may require.. In a case of this kind, after an adjudication, and in support of it, it is as just to bar the right to reverse it or to recover the debt attached, after a year and a day, as it is in ordinary cases to bar an action after six years without an adjudication. All that the law requires from the garnishee is that he shall, in good faith, see that the money is recovered from him by due course of law. Where this is the case, and there is no fraud or collusion, a recovery in foreign attachment is a good defence to an action brought by the defendant in the attachment against the garnishee. If the defendant in the attachment may thus be barred, those who stand in his shoes are in no better predicament. We except, of course, the bond fide holder of negotiable paper, who is protected by the necessary rules of commercial law. But ehoses in action are in general not assignable at common law. The assignee acquires but an equitable right; and where he accepts the assignment of a note, after it is overdue and bears the marks of dishonor on its face, he takes it subject to all the equities or charges to which it was subject in the hands of the original holder. In such cases the assignee is bound by every proceeding which binds the assignor. If one is barred without actual notice, the other is also. If the garnishee is not required to notify the defendant in the attachment, still less is he bound to notify the assignee, of whose rights, or even existence, he may have neither knowledge nor the means of knowledge. We [449] ’determine this question upon the assumption that Mealy had no notice of this attachment, because we are unwilling to lay it down as a general rule that every witness whose deposition is taken in a cause, at a distance from the place and before the time of trial, shall be thereby affected with notice of the subject-matter in dispute. The rule to take depositions does not necessarily give the witness any information of the nature of the controversy. The particular facts to which his attention is called may become incidental matters in controversies which do not affect him. It does not necessarily follow that Mealy had notice of the nature and object of this suit, merely from the fact that his deposition was taken to be read in evidence; although we may have our belief that the parties made him acquainted with the nature of the controversy, we do not feel at liberty to infer it as a fact legally established. It is true that the case of Fisher v. Lane, as reported in 3 Wilson 297, is occasionally cited to prove that where no notice is given to the defendant of proceedings in foreign attachment, they form no protection to the garnishee. Chancellor Kent disapproved of that decision, when delivering the opinion of the Supreme Court of New York, in Embree et al. v. Hanna, 5 John. R. 102. And Mr. Justice Huston, in delivering the opinion of this Court, in Coats v. Roberts, 4 Rawle 111, declared that Fisher v. Lane differed from “the prior and subsequent cases;” and he there held that “the.decision of a Court of competent jurisdiction, in a proceeding in rem, is conclusive on all the world.” But a decisive answer to the argument founded upon the case of Fisher v. Lane, is that it is misreported in 3 Wilson 297, and that no such principle as that supposed was ever decided in that case. The case is correctly reported in 2 William Blackstone 834, where the true ground of the decision against the validity of the foreign attachment appears. It was held to be invalid, not for want of actual notice, but for want of the constructive notice which the law requires. The issuing of a summons to the defendant, and a return of nihil, are indispensable to this; and for want of these requisites, the proceedings were held to be invalid and no defence to the garnishee: 2 Wm. Bl. 834. The case was decided in the Court of Common Pleas; and the King’s Bench afterwards regarded it as not in any respect standing in the way, when the true principle was affirmed that if a summons was issued and nihil retitrned, the proceedings were regular and barred the action brought by the defendant in the attachment against the garnishee: McDaniel v. Hughes, 3 Bast 367. It follows that if Mealy has not already received the money due on the note, this recovery of it from the garnishee will bar his claim. But Anderson’s possession of it is prima facie evidence of payment to the person appearing to be the owner, and authorizes [450] the presumption that it was paid to Mealy on the footing of his claim under the assignment of 22d January, 1843. It purports on its face to be a fair assignment, for a valuable consideration, and to have been made before this attachment was issued; and the receipt of the money under it is a representation that the facts thus set forth in it are true. This issue is for the very purpose of determining the truth of these representations. If the verdict finds them to be false, or establishes the fact that the assignment, was made without value given for it, or was made after the attachment and ante-dated for the purpose of overreaching it, or was otherwise fraudulent and invalid, it would be prima facie evidence to support the garnishee’s action against the witness, to recover back the money thus paid in mistake under a misrepresentation respecting the facts. If the verdict affirmed the validity of the assignment, it destroys the garnishee’s cause of action, and protects the witness. In one aspect of the case, therefore, the witness would be precluded by this decision from recovering the money. In the other he might be compelled to refund it. In either he is interested to defeat the plaintiff’s action, and was properly rejected. The objection to William Price’s deposition rests upon the assumption that the declarations of Cline were made after he had assigned the note to Eoulke. But this is the very matter in dispute. If Price be believed, Cline’s declarations were made before this assignment; for Price states that “ Cline had the note in his possession at the time — that he (the witness) took it into his hand and examined it,” and that he “ is positive that there was no assignment on it at that time.” This evidence was properly received. The instructions given were quite as favorable to the plaintiff in error as he had a right to demand. Judgment affirmed.