Chapman v. Clough

The opinion of the court was pronounced by Mattocks, J. — In this case, the only question is, whether the plaintiffs, who had received a good note as a pledge of their debtor, against a third person, of a greater amount than their debt, and sued the same, and attached personal property, have a right, pending such suit, to maintain a suit against their original debtor, or whether such pledge operates as a suspension of the right of action until the pledge is returned. It is admitted by the counsel for the defendant, that at common law, the right of action would not be suspended. But they say the decisions are different in Massachusetts, and some cases have been -cited from that state that seem to‘ support the position, that where the pledge is of person [126] a' Pl'°perty, and sufficient to raise the money on sale, the plaintiff must return the pledge before he can sue and at-tac^ other property. But under these decisions, it would not follow that the pledging a note or other chose in action, would have the same effect. How can the money be directly raised on a note? May the pledgee sell it? Will it sell at par? And if not, who is to bear the loss? Is not the note pledged merely collateral or additional security ? And why may not the creditor pursue either or both of his securities, until his debt is paid ? But suppose theie is no difference between the pledge of a note and of goods, and suppose also the law to be settled in Massachusetts in favor of the defendant, still as the common law is clearly the other way, it must be only, for very strong and sound reasons, that we should abandon the latter, and adopt the former. The reason offered is, that in New-England the creditor may attach property in the outset of his suit — whereas, in England, he can only seize it upon a fi. fa. after judgment; and therefore, it is said it would be giving the creditor too great a power over his debtor if he is permitted to hold the pledge, and sue his demand by attachment. In theory, our mode of taking property before it is ascertained there is a debt, and sometimes when it turns out that there is in fact none, seems premature and oppressive to defendants; but as attachment is only to compel security for what may be due, and the defendant may replevy or receipt the property if he is responsible, and if he is not, the creditor is only just in time to secure his debt. In practice it has been found to be of the utmost importance for the security of debts. And demands in general may be considered of less value against those who reside in a government where the laws will only permit a summons or even an arrest of the body, in the first instance, either of which is but too often treated by the debtor as notice to rid himself of his property before the execution comes. Indeed, for want of this preliminary security, where is the place out of New-England that a cunning and shuffling creditor can be compelled to pay? Although this provision is very salutary upon the whole, yet in some instances it is used oppressively against debtors; but not to [127] such an extent as would warrant this court in introducing the change contended for; and this upon the authority of the cases from one state only, as we do not learn that the courts of any other state in New-England, where the same reasons exist, have followed the decisions of Massachusett" We think it is more safe to adhere to the common law. The judgment of the county court is affirmed.