Fernau v. Butcher

Mr. Chief Justice Merctxb delivered the opinion of the Court, This suit was against the principals and sureties in a bond given under the Act of 17th March, 1869, which provides for the commencement of actions by attachment. On the 1st of March, 1881, the defendants in error made [298] and filed an affidavit under that Act setting forth that Fernau & Thomas (two of the plaintiffs in error) were indebted to them in the sum of 1506.74, and that a portion thereof, to wit, 1279.73, had been fraudulently contracted. They gave bond and caused an attachment to be issued for the whole sum against Fernau & Thomas. By virtue thereof the sheriff attached certain goods, which had already been levied on by former executions; and also attached some book accounts and other claims. On the 10th of March the defendants in the attachment filed their affidavit, denying that they had fraudulently contracted any part of said debt, and obtained a rule to 'show cause why the attachment should not be dissolved. On the hearing thereof the Court thought the fraud averred was not sufficiently proved, and made the rule absolute on the 25th April. This action of the Court has never been reversed. It stands as a conclusive judgment that the attachment was improperly issued. On the aforesaid 10th of March the bond in suit was executed by the defendants in the attachment as principals and by the other plaintiffs in error as sureties. It recites the attachment suit instituted and the action of the sheriff on the writ. It then proceeds to declare: “Now the condition of this obligation is such that if the plaintiffs in said attachment recover judgment in the same, and if the said Fernau & Thomas, defendants in said attachment, will pay the debt and costs at the expiration of the stay of executions on sums of like amount given to freeholders, or surrender up the said property in as good condition as when attached, to any officer having an execution against said party defendant, on any judgment rendered in said attachment in favor of the said plaintiffs, then and in such event the said obligation to be void, otherwise to be in full force and virtue.” The legal arbitrator, by whom the present case was decided, found as a fact that the existence of this bond was not known to the Court when it dissolved the attachment. A pei’sonal service of the writ having been made, the dissolving of the attachment did not operate as a discontinuance of the whole suit: Sharpless v. Zeigler, 92 Pa. St., 467 ; Biddle v. Black, 99 Id., 380; White v. Thielens, 106 Id., 173. Relieved from all the security acquired under and by virtue of the attachment, the suit, in the words of the statute, shall proceed “as in a case of summons for debt regularly issued and duly served.” The plaintiffs did proceed and obtain a judgment against the defendants for the whole amount of their claim. Failing to collect it, they brought suit on this [299] bond. The contention now is whether the dissolution of the attachment destroyed the vitality of the bond. This leads us to consider the design of the Act and the language of the bond. 1. The manifest purpose of the statute was not to supersede the usual forms of action for the recovery of debts. It provides a mode of proceeding only when the debtor has committed, or is about to commit, some fraudulent act. Then and then only does it give a creditor the right to forthwith seize the property of his debtor, and to hold the same as security for the payment of a judgment to be thereafter recovered. Without fraud of the debtor his property cannot be thus seized nor held for the security of the creditor. When seized under the allegation of fraud, its release may be procured either by dissolving the attachment, or by giving security conditioned for the payment of the judgment, which may be recovered “in said attachment ” or for the return of the property attached. Under the view we take of this case it is not necessary to decide now whether an attachment under this Act will lie, when the affidavit charges fraud as applicable to only a part of the debt, for a recovery of which the suit is brought. The writ goes out claiming the whole debt as an entirety. If it can be so used as to obtain possession of-property to pay a debt, concerning a large portion of which no fraud is alleged, the whole purpose aud spirit of the statute will be perverted. The intent of the Act is not to take from an unfortunate, but honest debtor, his property, before judgment rendered against him. If the fraud averred is not sufficiently proved, the attachment falls. When it does fall the plaintiff loses all the security which he temporarily held thereunder. Whether that security existed by virtue of the writ of attachment alone or by the superadded bond of the defendant and his sureties based thereon, a dissolution of the attachment strikes down the security. Without fraud of the defendants the plaintiffs were not entitled to demand either form of security. When the attaching power was stricken down, the bond of the defendants fell with it. 2. The language in the condition of the bond strengthens the conclusion at which we have arrived. It is to secure the payment of a judgment to be recovered “in said attachment.” It is based on the fact that property is held under the attachment, and assumes that it may legally be so held. It promises to surrender “the property attached ” to an officer having an execution against said defendants on any judgment rendered “ in said attachment ” in favor of said plaintiffs. The judgment, for the payment of which the obligors bound them [300] selves, was to be one that should be rendered in and by virtue of the attachment; and not one that might be obtained “ as in the case of a summons for debt regularly issued and duly served.” That language does not indicate any enlarged right, flowing from the issuing of an attachment and the seizure of property thereunder. On the contrary, it clearly imports a summons in the usual and ordinary form. When the attachment was dissolved the suit was stripped of all the properties and incidents applicable to the attachment. We think the bond was not intended to cover and does not cover, the case of a judgment recovered on an ordinary summons for debt. The learned judge therefore erred'in confirming the report of the Referee, and in entering judgment in favor of the plaintiffs below. Judgment reversed, the report of the Referee set aside, and judgment in favor of the plaintiffs in error.