Eby v. Guest

Mr. Justice Gordon delivered the opinion of the court, By the second section of the Act of 29th of March 1819, the stock of a corporation, owned by any individual or body corporate, in his or its own name, was made subject to execution as ordinary goods and chattels. The third section of this same act made provision for the attachment of such stock where it was held in the name of another than the real owner. Under this section, where the plaintiff filed the required affidavit, and entered into a recognisance, with two sufficient sureties, conditioned for the payment of such damages as the court or magistrate might adjudge to the party or parties to whom the stock might, in the end, prove to belong, then and in that case process, in the nature of a foreign attachment, might issue to attach such stock. Then came the Act of 1836, which provided; in like manner, where stock was held in the name of any other than the true owner, for the filing of an affidavit and the giving of approved security, and, by the 33d section, it was further provided, that, upon the filing of such affidavit and recognisance, it should be lawful for the prothonotary to issue process, in the nature of an attachment, against such stock, with a clause of summons, &c. It is obvious, that the security required by both these acts was intended for the protection of the persons, natural or artificial, in whose name or names the stock might be held; in this they were alik'e. But the Act of 1836 differs from the Act of 1819 in this., that by the latter the writ issued as a judicial act: “ It shall and may be lawful for such court, alderman or magistrate, to cause to be issued process in the nature of a foreign attachment;” whilst in the former the act is ministerial: •“ Upon the filing of such an affidavit and recognisance, it shall be lawful for the prothonotary to issue process in the nature [163] of an attachment.” Hence, the power .oí the officer depends upon the existence of the prescribed conditions; unless the affidavit and recognisance have been previously filed, the issuing by him of the writ is void for want of power. But the case in hand is just such a case. The attached stock was held as collateral security by the Enterprise Saving, Loan and Building Association of Pottstown, and, hence, in its name. As was held in Early & Lane’s Appeal, 8 Norris 411, the assignment of the stock of a corporation to itself, as collateral security for a loan, divests the title of the assignor so far as to prevent a sale of it under a fi. fa. against the assignor. The case in hand, falling, as it does, within the 32d and 33d sections of the Act of June 16th 1836, and the attachment having issued without the filing of the required affidavit and recognisance, this writ is ineffective and void. But it is said, that Edward B. Guest, who claims to have some interest in this stock, and at whose instance the writ was quashed, had no standing to intervene, as he did not comply with the requirements of the statute. This is true; but we do not see how it can help the plaintiff in error. There is no doubt about the rectitude of the judgment of the court below; hence, we cannot reverse. The case may be regarded as one involving a demurrer to a plea, where an examination must he had of all the pleadings, and judgment given to the one who shall appear to have the right on the whole case. The plea may be bad, and hence demurrable, but if the declaration is found to be bad also, though there be no demurrer to it, yet must the defendant have judgment. Just so here; we find that neither the plaintiff nor defendant in error has any standing in this court, and so, neither can be heard to complain of the action of the court below. Judgment affirmed.