Gager v. Watson

Church, J. The plaintiff in the court below, as the foundation of the relief he seeks, alleges, that William T. Gager was indebted to him, by judgment, and had been legally discharged from imprisonment on that judgment; that Moses Smith was indebted to said Gager, by a judgment upon which ah execution had been duly issued ; that the plaintiff, by a pro cess of foreign attachment against said Gager, had attached the judgment debt due from Smith to Gager, to satify the same judgment debt from which said Gager's body had been released from imprisonment; which proceedings of foreign attachment are yet pending ; that subsequent to said attachment, said Gager had assigned the debt due to him from said Smith, and which the plaintiff had attached, to W. W. Ellsworth, Esq. Ids attorney, and had caused the execution against Smith to be placed in file bauds of an officer for collection, threatening to enforce and collect the same ; and the plaintiff prays for art injunction against further proceedings against said Smith upon said execution, and also for an application in payment of the plaintiff’s debt against said Gager of so much of the judgment in favour of Gager against Smith, as may be sufficient to satisfy the same. The plaintiff proceeds upon the supposition, that the judgment debt due from Smith to Gager is attachable, by process of foreign attachment, and that by virtue of said process, he has acquired a lien upon it, which he seeks to protect. This [171] presents the first question suggested by this record, which is, whether a judgment debt in the situation of the one here described, may be attached and holden, by foreign attachment ? We think it may. 1. By the custom of London, from w hich our foreign at tachment system was principally derived, it is said, that a judg ment debt can not be attached ; and the same has been holden by the caurts in Massachusetts, under the trustee process of that state. 9 Petersd. Abr. 712. Sharp v. Clark, 2 Mass. Rep. 94. Prescott v. Parker, 4 Mass. Rep. 170 Franklin v. Ward & al. 3 Mason, 136. A fair, and, as we think, very obvions construction of our statute on this subject, a well as the general policy of our tachment laws, lead us to a different conclusion. It is enacted, that "where debts are due from any person to an absent and absconding debtor, it shall be lawful for any creditors to bring his action against such absent and absconding debtor, &c. ," and that "any debt due from such debtor to the defendant, shall he se cured to pay such judgment as the plaintiff shall recover." The provisions of this statute were extended, in 1830, to the attach ment of debts due to such persons as should be discharged from imprisonment. The language of this statute clearly embraces judgment debts, as well as others; and the reason and equity of it are equalyy extensive. A judgment debt is liquidated and certain; and, in ordinary case, little opportunity or necessity remains for controversy respecting its existence, character or amount. The policy of our laws has ever required, that all the property of a debtor not exempted by law from execution, should be subject to the demands of his creditors and that eve ry facility, consistent with the reasonable immunities of debtos should be afforded to subject such property to legal process And this policy is at least as obvious now, as formerly; for the rigour of former laws regarding imprisonment for debt has been. and probably will be still more, relaxed. It is true as has been contended, that to subject judgment debts to attachment and especially those upon which execu tions have issued, may, in some cases, produce inconvenience and embarrassment to debtors, as well as to creditors. Such consequences have resulted from the operation of our foreign at tachment system, in ordinary cases; and was foreseen and has been known to our legislarors, by whom this system has has [172] been introduced, continued and extended ; but the general interest of the community in this respect, has been considered as paramount to the possible and occasional inconveniences to which individuals may be sometimes subjected. A judgment debtor, in such cases, is not without relief: he may resort, whenever serious danger or loss is apprehended, either to his writ of audita querela, or to the powers of a court of chancery, for appropriate relief. But although we recognise the principle for which the plaintiff contends, that a judgment debt may be attached and sequestered, by the process of foreign attachment; yet it is obvious, that this principle is fatal to the remedy he here pursues ; for it proves, that he has adequate remedy at law, and of course, cannot have relief in equity. The plaintiff can pursue bis attachment, and is under no necessity of asking an injunction to stay proceedings on the execution against Smith. Smith alone can be injured, by these proceedings; and if he apprehends danger, may seek his relief. This furnishes a reason sufficient for the reversal of the decree of the county court. It was urged in argument, that if no lien had been fixed upon the judgment debt due from Smith to Gager, by the proceedings under the foreign attachment; and although because the proceedings were still pending, no judgment had been yet rendered or demand made upon the garnishee so as to subject him at law ; yet, the plaintiff having done all in his power, was entitled to the interference of a court of equity, and to the application of so much of the debt due from Smith to Ga-ger as would be sufficient to satisfy his demand against him. We think this position cannot be sustained. If no lien was created, by the attachment, then the plaintiff had no right at all to the debt due to Gager : his rights were no greater than the rights of Gager’s other creditors. A court of chancery has no power to sequestrate a debt for the benefit of a creditor, unless some special ground of equitable justification exists and thus assume what belongs to a court of law, under the statutes of foreign attachment. Donovan v. Finn & al. 1 Hop. Ch. Rep. 59. And although a lien by the foreign attachment, was created, so as to secure the debt due to Gager to respond the plaintiff’s judgment; yet the county court had no power to anticipate the result of the process of foreign attachment, and by its decree, compel the garnishee to pay over the [173] debt to the plaintiff, which both Gager and the garnishee Smith, had a right to contest at law. This was leaving the-plaintiff prosecuting his foreign attachment, while the fund or debt attached was withdrawn from its operation. Here again, the judgment of the county court was erroneous. From the view we have already taken of this case, it does not become necessary to decide upon the claims of lien interposed by Messrs. Ellsworth and Smith, the attorneys of Gager, and by Butler, the officer. But as a question of some practical importance is involved in these claims, we have believed it our duty to dispose of it. We are of opinion, that no lien exists in favour either of attorneys or officer, in the present case, as against the present plaintiff. An attorney, as against his client, has a lien upon all papers in his possession for his fees and services peformed in his professional capacity, as well as upon judgments received by him. But the attorney’s lien upon judgments is subject to the equitable claims of the parties in the cause, as well as to the rights of third persons, which cannot be varied or affected, by such lien. 2 Scho. & Lef. 279. 6 Mod. 98. Schoole v. Noble, 1 Hen. Bl. 122. 2 Petersd. Abr. 659. Mitchell v. Oldfield, 4 Term Rep. 123. Rumrill v. Huntington, 5 Day 163. We advise, that the decree of the county court in this case, be reversed. ⅜ Bissell, Huntington and Waite, Js. were of the same opinion. Williams, Ch. J. gave no opinion, being related toa party to the suit. Decree to be reversed.