Knox v. Protection Insurance Co.

Daggett, Ch. J. Two questions have been discussed, by counsel, and are now to be considered and decided. 1. Is the indebtedness of the defendants such as to authorize this proceeding by way of foreign attachment? That they owed, when the copy was left with them, to the absent debtor, in a certain sense, or that they were liable to pay him for a loss which they had insured against, is not denied ; but it is insisted, that this liability does not render them responsible in this suit. In support of this position, they cite the following authorities. Gordon v. Bowne, 2 Johns. Rep. 150. Howlett & al. v. Strickland, Cowp. 56. Colson & al. v. Welsh, 1 Esp. Rep. 379. Brown v. Cuming, 2 Caines, 33. Crawford & al. v. Stirling, 4 Esp. Rep. 207. These cases all arose and were decided under the statutes of set-off. Under those statutes, we know, that mutual debts only can be set off No claim for damages which are unliquidated, can be set off. This is the extent of those decisions. I do not think, that they affect this case. Our statute declares, “ that whenever the goods or effects of an absent or absconding debtor are concealed in the hands of his attorney, agent, factor or trustee, so that they cannot be found or come at, to be attached; or [442] where debts ate due frbnft any person to ah absent or absconding debtor; it shall be lawful," «fee» It would be an extremely narrow cohstrtíétictó of these words to limit them to liqui dated debts. The object of the statute, is, to secure for the benefit of the creditor, all the property of the debtor — ail his goods, effects and credits. The defendants owe the absent debtor for a loss ; they do not adjust it? but say they will not be responsible for it to his creditors.. They are liable to-pay him moiifey j and they will pay only when the damage * áre liquidated. It can be recovered in the same form of action, viz. assumpsit, Had the damages been ascertained, there could have been no difficulty; but in that case, there would have been only indebtedness. Had the absent debtor sent them goods to sell, or debts to collect, and had they converted them into money, still the account might have remained unsettled, and they have been liable in an action of assumpsit or account. This objection, therefore, cannot prevail. 2. The defendants are a corporation ; and therefore, not liable to the process of foreign attachment; or in other words, cannot be made garnishees. I ask, why not! Corporations can become indebted in all the modes in which individuals can. They cars receive and hold goods and effects, which may be entrusted to them. It is difficult, then, to see why they may not be the subjects of garnishment, There is nothing in the act, which would serve to exempt a corporation from liability to this suit, any more than merchants in company, or individuals. The word person is, indeed, used in the statute. Thus, it is said, that “ when debts are due from any person,” &c. But a corporation is a person. The general division of persons is into natural and artificial. I t has been decided, by the supreme court of N> n-York, that under the act for the assessment and collection of taxes, corporations are liable for property owned by them; yet the act speaks only of persons. The People v. The Utica Insurance Company, 15 Johns. Rep. 358. 382, In England, a corporation seised of land in fee for their own profit, are considered as occupiers or inhabitants, and liable to be rated for the poor tax. Rex v. Gardner, Cowp. 79. So for the repairs of bridges. 2 Inst. 703. I am aware, that all statutes which speak of persons, cannot be construed to mean corporations ; but such construction [443] ought to be given, as will effectuate the intentions of the legislature -such as will promote the object, and prevent the evil, in view. To apply this reasonable rule to the question now under consideration: Could the legislature have intended, that a debtor might deposit his money or effects in a bank, and then abscond beyond the reach of process, and thus draw from the bank from time to time, and yet the bank not be subject to garnishment ? Or could it have been the intention of the statute, that a debt due from a corporation should be exempt from the process of foreign attachment ? But it is said, that there are cases in point to shew, that corporations cannot be hoiden as garnishees, Byard v. Stewart, 1 Root, 149. was cited. That case decides nothing, except that the garnishee could not send his deposition, instead of appearing before the court, and submitting to examination under oath. This point has no bearing on the question. In The Union Turnpike Road v. Jenkins & al. 2 Mass. Rep. 37., decided in 1806, it is declared, that an aggregate corporation cannot be summoned as trustee. No reasons are given for the decision; and with all respect for the learned court, I cannot feel bound to assent to that doctrine. It is further objected, that a corporation cannot be sworn; and the statute provides, expressly, for the disclosure of the defendant under oath, in the scire-facias. This objection comes quite too late. It is established, by the subjoined cases» that a corporation may be cited to disclose in a court of chancery; and that the secretary or others of the corporation may be made parties to the bill; and thus a full disclosure may be taade. Anon. I Tern. 117. Wych v. Meal, 3 P. Wms. 310. Moodarnay v. Morton, 1 Bro. Ch. Rep. 469. Dummer v. Chippenham, 14 Ves. 245. Brumly v. The Westchester County Manufacturing Society, 1 Johns. Ch. Rep. 366. They may also be compelled to produce books and papers. If the Protection Insurance Company can be made garnishees, and if they are and were indebted so as to be liable to this suit by foreign attachment, the court will meet with no insuperable obstacle to compel such disclosures as may subserve the purposes of justice, if they are not voluntarily yielded. The plaintiff's, then, must recover. Biss ell and Church, Js. were of the same opinion- [444] Peters, J. dissented. Williams, J. being a stockholder in the Protection Insur-anee Company, gave no opinion» Demurrer overruled