Culver v. Hall

Church, Ch. J. The proceeding, so long known to us, as a foreign attachment, was introduced into our system of jurisprudence, from a somewhat similar custom of London, as early as in the year 1726, by a statute entitled, “An act for the recovery of debts out of the estate or effects of absent and absconding debtors.” This statute, with various modifications, has continued, as a distinct statute, until the revision of 1849, when it was made part of the general act, “ For the regulation of Civil Actions.” The provision for attaching or securing debts, by this process, was not introduced until 1784. The mode of proceeding under this law, is regulated by the law itself, without recourse to the provisions of other statutes, applicable to other subjects. The revised statute of 1849 for the regulation of civil actions, ch. 14. sect. 175. of Executions, is but the re-enactment of the former provisions of the law on the same subject, but does not relate to the proceedings in foreign attachment, but applies to cases in which the goods, lands or body of the defendant are to be taken or levied upon, by execution. Then, to be sure, before the execution can be thus levied, a previous demand, by the officer, of the defendant, must be made ; and for this the reason is obvious; it is, that, the execution debtor may have an opportunity, by payment, to protect his chattels from sale at a sacrifice, or his lands from being taken by an appraisal not his own, or his body from imprisonment. But no such demand is required by the statute regulating proceedings in garnishment; a demand of the debtor in the execution is not alluded to, in these proceedings; nothing more than that the plaintiff, on praying out his execution, may direct the officer serving the same to make demand of the garnishee, of the goods and effects in his hands, whose duty it shall be to expose the same to be taken on the execution, and also to make demand of such debtor (the garnishee,) of any debt due to the defendant; and it shall be the duty of such [415] debtor to pay the same. This statute directs no levy to be made upon the goods or lauds of the defendant, nor upon his body; and therefore, it does not require a previous demand to be made of him. The object of this proceeding is, not to coerce the defendant, but to lay a foundation for further proceedings against the garnishee, if he refuses to pay, &c. on demand of him. If the garnishee, upon demand made of him, actually exposes or turns out to the officer the defendant’s goods, he will be discharged ; or if he pays the debt due from him, he will be discharged ; but if the officer actually levies upon goods thus exposed, whether, in such case, he shall be bound to make demand before levy, we do not decide ; such is not the present case. In this case, the garnishee, upon demand made of himself, has, in good faith, paid his debt to the officer. Our factorizing law, as we sometimes call it, never contemplated a demand upon the defendant; he was always supposed to have absconded, and to have gone beyond the reach of a demand. The garnishee is the only person pursued ; he is treated as the substitute of the absent debtor, and may appear and defend for him, if he will; he stands in his place; and, of course, no other demand than upon him, can, for any good purpose, be required. It is but recently, that this process could be pursued, unless the defendant was absent, or had absconded ; and because now, this remedy has been extended so as to reach debtors at home, as well as absent, this can not justify the introduction of a new construction of the law, nor impose a new duty upon an officer, not directed by the statute. The authority of Judge Swift supports our views. He says, that it must be alleged in the scire-facias against the garnishee, to subject him, that demand was made upon him ; but he does not intimate, that an allegation of demand upon the original defendant in the execution, is necessary, 1 Sw. Dig. 730. To hold, under such facts as appear upon this record, the present defendant to be liable, after he has once, in good faith, paid the debt under the factorizing process, would be hard and unjust. He was not bound to know, and he had no means of knowing, whether a demand had been made of the defendant in the execution. If such demand was, in. [416] point of law, necessary, he was justified in presuming that -the officer had performed this previous duty, and he was justified in acting on that presumption, in the payment of the money to him. There is no error in the judgment of the superior court. In this opinion the other Judges concurred. Judgment affirmed.